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The end of the twentieth century saw an explosive intrusion of intellectual property law 
into everyday life. Expansive copyright laws have been used to attack new forms of 
sharing and remixing facilitated by the Internet. International laws extending the patent 
rights of pharmaceutical companies have threatened the lives of millions of people 
around the world living with HIV/AIDS. For decades, governments have tightened the 
grip of intellectual property law at the bidding of information industries. Recently, a 
multitude of groups around the world have emerged to challenge this wave of enclosure 
with a newcounterpolitics of "access to knowledge" or "A2K."They include software 
programmers who take to the streets to attack software patents, AIDS activists who 
fight for generic medicines in poor countries, subsistence farmers who defend their right 
to food security and seeds, and college students who have created a new "free culture" 
movement to defend the digital commons. In this volume, Gaelle Krikorian and Amy 
Kapczynski have created the first anthology of the A2K movement, mapping this 
emerging field of activism as a series of historical moments, strategies, and concepts. 
Intellectual property law has become not only a site of new forms of transnational 
activism, but also a locus for profound new debates and struggles over politics, econom- 
ics, and freedom. This collection vividly brings these debates into view and makes the 
terms of intellectual property law legible in their political implications around the world. 



"It's hard to believe that the 'definitive' book has already been written about a movement 
as new as A2K. It's even more unusual for an edited collection of essays to have the 
power of a monograph. But this collection of essays is both the definitive explanation 
of the access to knowledge movement and a beautifully constructed conversation about 
the various ideas, conceptual, political and organizational, that make it up. From Amy 
Kapczynski's superb overview, to Yochai Benkler's brilliant meditation on the commons, 
to Lawrence Liang's superbly titled 'The Man Who Mistook His Wife for a Book,' the 
central ideas of A2K are laid out with a freshness and power that is remarkable. And 
the rest of the contributors in the essays gathered here are just as strong. This is 
a must-have for university libraries, but it is also something that will be read intently, 
tactically, and sometimes uneasily, in venues ranging from WIPO to the university 
classroom. Highly recommended." 
—James Boyle, Duke University, author of The Public Domain 



Gaelle Krikorian 
Amy Kapczynski 



Gaelle Krikorian and Amy Kapczynski 



"This is the first book of its kind. It comprehensively describes the intellectual contours of 
a powerful and emerging social movement and serves as a handbook for activism. The 
A2K movement is disparate and diverse. So assembling a volume that takes account of its 
various strands and influences is no small task. Gaelle Krikorian and Amy Kapczynski have 
selected works from the most influential writers and practitioners of this new distributed 
politics. I will certainly assign this book to my survey course next year." 
—Siva Vaidhyanathan, University of Virginia, author of The Cooglization of Everything 



II III III I 

781 890 M 951 962 



Cover design by Julie Fry 

Image: Adrian Studer, Nature is Copyleft 



ACCESS TO KNOWLEDGE 

IN THE ACE OF INTELLECTUAL PROPERTY 



ACCESS TO KNOWLEDGE 
IN THE ACE OF INTELLECTUAL PROPERTY 



ACCESS TO KNOWLEDGE 
IN THE ACE OF INTELLECTUAL PROPERTY 



edited by 
Gaelle Krikorian and Amy Kapczynski 



ZONE BOOKS • NEW YORK 



The publisher wishes to acknowledge the generous support 
of the Open Society Institute. 

© 2010 Amy Kapczynski, Gaelle Krikorian, and Zone Books 

ZONE BOOKS 

1226 Prospect Avenue 
Brooklyn, NY 11218 

This work is published subject to a Creative Commons by-nc-nd 
license, with the exception that the term "Adaptations" in 
Paragraph i(a) of such license shall be deemed not to include 
translations from the English original into other languages. 
Such translations may therefore be created and disseminated 
subject to the other terms of such license. 

Copyright in each chapter of this book belongs to its respective 
author(s), and is published subject to the same amended 
Creative Commons license. For permission to publish commercial 
versions of such chapter on a stand-alone basis, please contact 
Zone Books or the author. 

Printed in the United States of America. 

Distributed by The MIT Press, 

Cambridge, Massachusetts, and London, England 

Frontispiece: Graeme Arendse, Chimurenga Library 
(photo Stacy Hardy). 



Library of Congress Cataloging- in- Publication Data 

Access to knowledge in the age of intellectual property / 
edited by Gaelle Krikorian and Amy Kapczynski. 
p. cm. 
Includes bibliographical references. 
isbn 978-1-890951-96-2 (paperback edition) 
isbn 978-1-890951-97-9 (open access edition) 

1. Intellectual property. I. Krikorian, Gaelle, 1972- 
II. Kapczynski, Amy. 

K1401.A929 2010 
346.04'8 — dc22 

2009054048 



Contents 



Preface 



part one: introduction 



17 Access to Knowledge: A Conceptual Genealogy 
Amy Kapczynski 

57 Access to Knowledge as a Field of Activism 
Gaelle Krikorian 



PART TWO: THE EMERGENCE OF THE POLITICS OF A2K 

99 The Emergence of the A2K Movement: 

Reminiscences and Reflections of a Developing-Country Delegate 
Ahmed Abdel Latif 

127 The Revised Drug Strategy: Access to Essential Medicines, 
Intellectual Property, and the World Health Organization 
Ellen 't Hoen 

141 The Doha Declaration on TRIPS and Public Health: 
An Impetus for Access to Medicines 
Sangeeta Shashikant 

161 An Uncertain Victory: The 2005 Rejection of Software Patents 
by the European Parliament 
Philippe Aigrain 



175 A2K at WIPO: The Development Agenda and 

the Debate on the Proposed Broadcasting Treaty 
Viviana Muhoz Tellez and Sisule F. Musungu 

PART THREE! THE CONCEPTUAL TERRAIN OF A2K 

197 "IPWorld"-MadebyTNCInc. 
Peter Drahos 

217 The Idea of Access to Knowledge and the Information Commons: 
Long-Term Trends and Basic Elements 
Yochai Benkler 

237 Access to Knowledge: The Case of 

Indigenous and Traditional Knowledge 
Carlos M. Correa 

253 Undermining Abundance: Counterproductive Uses of Technology 
and Law in Nature, Agriculture, and the Information Sector 
Roberto Verzola 

277 The Man Who Mistook His Wife for a Book 
Lawrence Liang 

293 Free-Trade Agreements and Neoliberalism: 

How to Derail the Political Rationales that Impose 
Strong Intellectual Property Protection 
Gaelle Krikorian 

329 Information/Knowledge in the Global Society of Control: 
A2KTheory and the Postcolonial Commons 

Jeffrey Atteberry 

353 Beyond Representation: The Figure of the Pirate 
Lawrence Liang 

377 Virtual Roundtable on A2K Politics 

Amy Kapczynski and Gaelle Krikorian, with Onno Purbo, Jo Walsh, 
Anil Gupta, and Rick Falkvinge 



PART FOUR: STRATEGIES AND TACTICS OF A2K 

391 A Comparison of A2K Movements: From Medicines to Farmers 
Susan K. Sell 

415 TRIPS Flexibilities: The Scope of Patentability 
and Oppositions to Patents in India 

Chan Park and Leena Menghaney 

435 TRIPS Flexibilities in Thailand: Between Law and Politics 

Jiraporn Limpananont and Kannikar Kijtiwatchakul 

451 Using Competition Law to Promote Access to Knowledge 
Sean M. Flynn 

475 Open-Access Publishing: From Principles to Practice 
ManonA. Ress 

497 The Global Politics of Interoperability 
Laura DeNardis 

517 Back to Balance: Limitations and Exceptions to Copyright 

Vera Franz 

531 New Medicines and Vaccines: Access, Incentives to Investment, 
and Freedom to Innovate 
Spring Gombe and James Love 

547 Virtual Roundtable on A2K Strategies: Interventions and Dilemmas 

Amy Kapczynski and Gaelle Krikorian, with Harini Amarasuriya, Vera Franz, 
Heeseob Nam, Carolina Rossini, and Dileepa Witharana 

575 Interview with Yann Moulier Boutang 
Gaelle Krikorian 

595 Nollywood: How It Works— A Conversation with Charles Igwe 
Achal Prabhala 



EPILOGUE: A2K IN THE FUTU RE — VISIONS AND SCENARIOS 

607 A Copyright Thriller versus a Vision of a Digital Renaissance 
Sarah Deutsch 

613 Social Mutations in the Future 
Gaelle Krikorian 

621 The Future of Intellectual Property and Access to Medicine 
Eloan dos Santos Pinheiro 

627 Options and Alternatives to Current Copyright Regimes and Practices 
Hala Essalmawi 

633 The Golden Touch and the Miracle of the Loaves 
Roberto Verzola 



637 Contributors 



Preface 



In a hospital in South Korea, leukemia patients are expelled as untreatable because 
a multinational drug company refuses to lower the price of a life-saving drug. 
Thousands of miles away, a U.S. group called the Rational Response Squad is 
forced by the threat of a copyright lawsuit to take down a YouTube video criticiz- 
ing the paranormalist Uri Geller. Could we — should we — see these two events, so 
seemingly remote from one another, as related? Yes — or such is the premise of a 
new political formation on the global stage, one that goes under the name of the 
"access to knowledge movement" — or more simply, A2K. 

A2K is an emerging mobilization that includes software programmers who 
took to the streets to defeat software patents in Europe, AIDS activists who forced 
multinational pharmaceutical companies to permit copies of their medicines to 
be sold in South Africa, and college students who have created a new "free cul- 
ture" movement to "defend the digital commons" — to select just a few. A2K can 
also be seen as an emerging set of theoretical commitments that both respond 
to and reject the key justifications for "intellectual property" law and that seek 
to develop an alternative account of the operation and importance of informa- 
tion and knowledge, creativity and innovation in the contemporary world. (The 
quotes reflect the fact that A2K calls the concept of "intellectual property" into 
question, because of its tendency to reify the form of legal regulation that it rep- 
resents. Some argue that the term itself should be banished; we nonetheless use 
it here because most A2K advocates have found it indispensable, as a term that 
designates the broad and diverse restrictions on the exchange of information and 
knowledge against which they have emerged and mobilized.) Access to Knowledge 
in the Age of Intellectual Property takes as its subject this new field of activism and 
advocacy and the new political and conceptual conflicts occurring in the domain of 
intellectual property. 



Why is intellectual property becoming the object of a new global politics today? 
Can file sharers, software programmers, subsistence farmers, and HIV-positive 
people find useful common cause in their joint opposition to existing regimes of 
intellectual property? What concepts might unite the emerging A2K coalition, and 
what issues might fracture it? What is at stake with the use of the term "access" as 
a fulcrum of this mobilization? Is A2K more than an agenda for those opposed to 
restrictions on intellectual property — and should it be? 

This volume takes such questions as its object. It aims to make this new field of 
political contention accessible to those unfamiliar with it and to provide a place for 
those generating it to analyze its evolution, goals, tensions, and future. The contri- 
butions come from a varied mix of activists and academics and from different parts 
of the world. This makes for an eclectic and sometimes even uncomfortable mix, one 
true to the emerging dynamics of the A2K movement itself. Their subjects are also 
diverse, part of our own editorial attempt to avoid narrowly prescribing the con- 
tours of A2K even as we inevitably, through these same selections, construct them. 

The book itself is divided into four parts and an epilogue. The first section 
offers two introductions to the field of A2K. It should serve to orient readers 
entirely new to debates over intellectual property, but also to provide fodder for 
debate among those who consider themselves peripheral or central actors in the 
movement itself. The first introduction, by Amy Kapczynski, offers a conceptual 
genealogy of the A2K movement— an account of the concepts and arguments that 
its participants are generating in order to theorize their common condition and to 
undermine the narrative about intellectual property that has justified the expan- 
sion of this form of law and governance over the past few decades. The second 
introduction, by Gaelle Krikorian, examines A2K as a field of activism. It describes 
how the mobilization has emerged and organized itself using the issue of "access," 
the technological and political context to which the movement corresponds, the 
representations and practices it engages, and its political stakes both as a form of 
social mobilization and as an alternative to intellectual property rights extremism. 

The second section of the book provides a geography of the new field of activ- 
ism and advocacy that constitutes A2K. With no pretense to being comprehen- 
sive, it illuminates a series of historical moments that have decisively marked the 
emergence of the politics of A2K. It thus identifies a series of fronts along which 
intellectual property conflicts are crystallizing and sketches A2K mobilizations 
across a spectrum of political space and time. 

In this section, Ahmed Abdel Latif describes how A2K has been framed as a 
concept and the genesis of the A2K name, thereby locating A2K as a field of forces 
gathering together under a common banner. Thereafter, several historical moments 
in A2K illustrate how, where, and when certain key issues surfaced and were 



KAPCZYNSKI AND KRIKORIAN 



rendered the subject of politics. Ellen 't Hoen describes how health activists work- 
ing on pharmaceutical policy came to conceptualize intellectual property as central 
to their struggles. Sangeeta Shashikant narrates the behind-the-scenes forces that 
led to one of the most salient moments of success for A2K, the Doha Declaration 
of the World Trade Organization, which declared that intellectual property rights 
do not trump public health. Moving from medicines to the emerging politics of 
hackers, Philippe Aigrain analyzes the successful mobilization against the codifica- 
tion of software patents at the European Parliament. The last contribution in this 
section comes from Viviana Muhoz Tellez and Sisule F. Musungu, who describe 
two recent and dramatic defeats for intellectual property absolutism at the World 
Intellectual Property Organization (WIPO). In the first, A2K activists working with 
developing-country governments outflanked their opponents, proposing a new 
"development agenda" that seeks to reorient the work of WIPO to respond to the 
needs of those living in the Global South. In the second, A2K activists and their 
allies mobilized to defeat a new WIPO Broadcasting Treaty that had been heav- 
ily promoted by forces in the old media seeking to extend their control over the 
domain of new media. 

The third section of the book offers varying visions — perhaps complementary, 
perhaps at odds with one another — of the conceptual terrain of the A2K move- 
ment. It charts the evolution of ideas and the surfacing of arguments within the 
movement and thereby explores how the issue of intellectual property has been 
politicized and how our collective understandings of what is at stake in these 
debates have been tentatively transformed by A2K activists. 

The section begins with Peter Drahos's account of the global mobilization of 
intellectual property owners that preceded and helped to shape A2K. That mobi- 
lization was exceptionally successful— in a matter of years, it secured a dramatic 
reordering of the global governance of intellectual property, most importantly by 
inserting intellectual property obligations into the new World Trade Organization. 
These efforts were sustained by the ideological interventions that Drahos describes. 

In response to these interventions, A2K advocates have attempted to reframe 
public understandings regarding the just and efficient conditions for the use, 
creation, and re-creation of knowledge. Many use the issue of access as a lens, 
possibly theoretical and certainly strategic, to refocus traditional political con- 
figurations around intellectual property and to set out their claims. Yochai 
Benkler articulates the "information commons" as the central concept of A2K and 
describes the historical and political forces that converged to create the conditions 
for this striking new field of political coalition. Interventions by Carlos M. Correa, 
Roberto Verzola, Gaelle Krikorian, Jeffrey Atteberry, and Lawrence Liang explore 
paradoxes and tensions in the emerging discourse of A2K along vectors ranging 



from indigenous knowledge, in the essay by Carlos Correa, to the notion of the 
commons, in Jeffrey Atteberry's contribution, and the figure of the pirate, in one 
of the essays by Lawrence Liang. Robert Verzola and Lawrence Liang, in another 
essay, each offer us new paradigms for the relationship between knowledge and 
the production and control of knowledge-embedded goods, thus offering us new 
ways in which to think about the struggle between A2K and intellectual property. 
Verzola theorizes the commonalities between technological measures used to dis- 
rupt the reproducibility of information in the digital and agricultural realms and 
challenges us to rethink the domain of information production as one of abun- 
dance and fertility, rather than scarcity. Liang explores etymological links between 
identity and property and considers the implications of thinking about intellectual 
and cultural production through the dynamics of relationality, rather than posses- 
sion. Gaelle Krikorian, focusing on free-trade agreements, offers an analysis of the 
political environment and the political rationales of the maximalization of intellec- 
tual property protection and examines some of the perspectives and experiences 
of the resistances to it. 

The section closes with an opening, reproducing questions that we distributed 
to a group of A2K actors who have different approaches to and involvements in 
the movement— Onno Purbo, Jo Walsh, Anil Gupta, and Rick Falkvinge. The ques- 
tions invited them to elaborate on the concepts and ideology central to A2K, and 
their responses illustrate the diversity of views on these matters that exist within 
the movement. 

A2K activists have proven remarkably creative and successful in recent years, 
not only in contesting the contours of intellectual property law, but also in identi- 
fying weaknesses and failures in the regime of intellectual property, spaces where 
new regimes for generating and managing knowledge and knowledge goods might 
evolve. The third section of the book describes A2K by exploring its strategies and 
tactics. It thereby seeks to illuminate how the mobilization has politicized this pre- 
viously "technical" area of law and policy and at times has successfully combated 
very well-resourced and politically powerful opponents. 

By comparing different strands within A2K, Susan K. Sell articulates the vari- 
ous grammars of claims-making of movements within the movement. A series of 
detailed case studies of strategies deployed in specific contexts then permits us to 
mark and critically assess the choices and stances being made in the name of A2K: 
in India, the choice NGOs made to master and rework the discourse of patent law 
in order to oppose drug patents (Chan Park and Leena Menghaney); in Thailand, 
the efforts made to reduce medicine prices by pressing the government legally to 
override patents (Jiraporn Limpananont and Kannikar Kijtiwatchakul); in South 
Africa and elsewhere, the deployment of the rhetoric and law of competition 



KAPCZYNSKI AND KRIKORIAN 



to attack exclusive rights in information (Sean Flynn); in an NGO in the United 
States, the creation of an open-access journal that sought to develop knowledge- 
governance principles and practices consistent with the commitments of the move- 
ment (Manon A. Ress); at technological standard-setting organizations, debates 
over the nature and terms of open standards (Laura DeNardis); at WIPO, attempts 
to introduce new multilateral agreements to defend the rights of the visually 
impaired and rebalance the current copyright regime (Vera Franz); and finally, in 
the domain of global health law, the promotion of alternative models for medical 
research and development that would better combine the twin goals of access and 
innovation (Spring Gombe and James Love). 

This section next reproduces a series of questions and responses solicited from 
advocates (Harini Amarasuyiya, Vera Franz, Heeseob Nam, Carolina Rossini, and 
Dileepa Witharana) regarding contemporary strategic and tactical opportunities 
and dilemmas in A2K. Participants were invited to reflect upon how the move- 
ments and groups with which they are associated have articulated their principles 
and campaigns, defined their goals and translated these into practice, and related 
to law, the state, private interests, and others in the A2K coalition. 

The section closes with two interviews that provide practical as well as theo- 
retical dialogues on the transformations associated with A2K as they affect society 
and the economy. Yann Moulier Boutang and Gaelle Krikorian engage the implica- 
tions of the emergence of "cognitive capitalism" for knowledge industries as well 
as for governments and individuals. Charles Igwe and Achal Prabhala discuss the 
knowledge-governance and dissemination strategies that characterize the Indian 
and Nigerian film industries and how these might inform debates about A2K. 

To end the volume in a mode that invites continuing reflection, an epilogue 
offers a series of visions of the future by authors — Sarah Deutsch, Gaelle Kriko- 
rian, Eloan dos Santos Pinheiro, Hala Essalmawi, and Roberto Verzola— who were 
asked to imagine best-case and worst-case scenarios of the regulation and pro- 
duction of knowledge in their field of interest. Unconstrained by the imperative 
to describe "likely" scenarios, they offer us alternative visions that illuminate the 
stakes of the choices that we make today and how these choices could portend 
radically different futures for access to knowledge. 

As the diversity of the volume demonstrates, the conceptual and political 
dynamics of the A2K movement reveal it as a mobilization that is very much still 
in motion. Neither in the introductions that follow nor in this collection as a whole 
do we purport to describe fully, account for, or locate the movement for access to 
knowledge. The name itself is contestable and may not be the one that represents 
this new politics over time. Nor is it clear what shape this new politics will take — 
how much it will tend toward conceptions of information and how much toward 



13 



issues of knowledge, how much it will attend to or be driven by the concerns of the 
Global South as opposed to those of the North, what modes of engagement with 
law and with activism will characterize the mobilization over time, or who will con- 
stitute the center and who the periphery when historians write the story of A2K. 

But despite this still-provisional nature, the A2K movement has already begun 
to reveal an important reality: Today, freedom and justice are increasingly medi- 
ated by decisions that were until recently considered supremely technical — deci- 
sions about the scope of patent law, about exceptions and limitations to copyright 
for the blind, about the differential virtues of prizes and patents for stimulating 
government investment in neglected diseases. By politicizing a discourse that was 
once highly technocratic, the A2K movement is rendering visible once-obscure 
vectors of the transmission of wealth and of power over life and death. It demands 
that the concepts and terms central to intellectual property be introduced into 
everyday discourse and become legible in their political implications around the 
world. This volume, we hope, will assist in that project. 



14 KAPCZYNSKI AND KRIKORIAN 



PART ONE 



INTRODUCTION 



Access to Knowledge: A Conceptual Genealogy 

Amy Kapczynski 



A decade or two ago, the words "intellectual property" were rarely heard in polite 
company, much less in street demonstrations or on college campuses. Today, this 
once technical concept has become a conceptual battlefield. A Google search for 
the term, for example, first turns up a ferociously contested Wikipedia definition. 1 
When I did the search, after two links to the World Intellectual Property Organiza- 
tion (WIPO) Web site, the next most important page according to Google's ranking 
algorithm was an article called "Did You Say 'Intellectual Property'? It's a Seduc- 
tive Mirage," by free-software guru Richard Stallman. 2 

Criticisms of the existing state of intellectual property law have gone viral, turn- 
ing up around the world in domains as diverse as software, agriculture, medicine, 
and music. Activist efforts to challenge the contours of intellectual property law 
are increasingly interconnected and gathered (especially globally) under the call for 
"access to knowledge" or "A2K." 3 A2K is a mobilization very much in process — 
it hasn't yet been subject to the kind of histories or hagiographies that would render 
one description or account of it authoritative. Rather than provide such an account, 
this introductory essay seeks to locate A2K in two ways: as a reaction to structural 
trends in technologies of information processing and in law, and as an emerging 
conceptual critique of the narrative that legitimates the dramatic expansion in intel- 
lectual property rights that we have witnessed over the past several decades. 

As the following pages describe, new information-processing technologies 
have made certain kinds of knowledge and information increasingly critical to 
the accumulation and distribution of global wealth, as well as to the terms of our 
bodily and social existence. Information-processing industries responded to these 
shifts by pressing for— and achieving — unprecedented extensions of intellectual 
property rights in order to gain more control over the use and exchange of infor- 
mation across the globe. 



17 



This move was not just a naked expression of lobbying power, although it was 
that, too. Importantly, a conceptual narrative legitimated this shift. As we'll see, 
this narrative is not a single theory, but an amalgam of theories drawn from dif- 
ferent domains and spun together to appear as one coherent account. The A2K 
movement is challenging the coherence of this account by formulating a series of 
critical concepts, metaphors, and imaginaries of its own — concepts such as the 
"public domain" and the "commons" and ideals such as "sharing," "openness," and 
"access." These concepts are sometimes self-consciously cultivated by activists and 
at other times can more accurately be said to be immanent in their claims. 

One way to map the A2K movement, then, is to explicate the most important 
of these concepts by analyzing the work that they do to challenge the prevailing 
justifications for intellectual property law. A conceptual genealogy of this sort can 
help us not only better understand the political conflicts that are emerging around 
issues of intellectual property rights, but also determine who is or may become 
part of the A2K mobilization. Finally, it can also help us map key conceptual ten- 
sions in the field of A2K, ideational vectors that pull this new discourse in one 
direction or another along the spectrum of political vision and action where the 
A2K movement is being assembled. This introduction thus closes by articulating a 
series of questions that confront A2K as it looks to the future. 

HOW KNOWLEDGE MATTERS 

To understand why and how a new politics of intellectual property is arising today, 
we must first understand something about why and how knowledge matters in the 
world today — both how it makes a difference in our world and how it is implicated 
in the materialization, the making into matter, of that world. 

Although knowledge has always mattered to the organization of human societ- 
ies, in recent years, prominent economists and social theorists have sought to dem- 
onstrate that knowledge has come to matter in a new way. When the purported 
shift happened and what it means depends upon how the change is characterized. 

In the economic perspective, knowledge matters in its technological capac- 
ity, for its effect on productivity and growth. Karl Marx and Joseph Schumpeter 
early on posited that capitalism relies on technological dynamism, 4 but the role 
of knowledge was not recognized in the neoclassical paradigm until the work of 
Robert Solow in the 1950s. Solow posited a connection between knowledge and 
economic growth, arguing that the vast proportion of gains in productivity in early 
twentieth-century America could be attributed not to factors related to the use of 
labor or capital, but to a "residual" that he described as technical change. 5 Solow's 
residual came to be understood as a range of advances in knowledge — from new 



18 KAPCZYNSKI 



machines (such as tractors) to new management techniques (such as Fordism) — 
that made processes of production more efficient. 6 

Mainstream economists soon began to contend that knowledge is not only 
important, but increasingly important to economic growth, positing that the world's 
most developed economies have been becoming more knowledge intensive. Fritz 
Machlup took note of the way the U.S. economy was changing in the 1960s, a 
change that was first marked by "an increase in the share of 'knowledge-producing' 
labor in total employment." 7 At the turn of the twentieth century, for example, 
one-third of U.S. workers were employed in the service industries. By 1980, close 
to seven in ten were. 8 The trend that Machlup and his colleagues were identifying 
in the United States was in fact occurring across so-called developed economies as 
agricultural and to a lesser extent industrial jobs steadily lost ground to jobs in sec- 
tors such as education, finance, information technology, and the culture industry 9 
The most productive component of these economies shifted from industrial sectors 
to "information-processing" sectors such as financial services, marketing, biotech- 
nology, and software. 10 

Perhaps the most prominent theorist of this shift, Manuel Castells, refers to this 
as a transition to the "informational" mode of development. Informationalism is 
not identified by the importance of knowledge to the economy, for knowledge was 
essential to the industrial mode of development too. Rather, it derives from the fact 
that "the action of knowledge upon itself [is] the main source of productivity." New 
information and communications technologies permit accelerating feedback loops 
of innovation and information processing, making the human mind "the direct 
productive force, not just a decisive element of the production system." 11 Manu- 
facturing and agriculture of course do not disappear, but information processing — 
for example, in computing, genetic engineering, or management techniques — 
decisively determines their productivity. 

Can the shift truly be characterized as global, given that it is centered in a few 
of the world's wealthiest countries? Castells says yes, because the economy today 
can work "as a unit in real time ... on a planetary scale" and because local econo- 
mies everywhere depend "on the performance of their globalized core," which 
includes "financial markets, international trade, transnational production, and, 
to some extent, science and technology, and specialty labor." 12 Also, developing 
countries that have long labored under a trade imbalance with regard to manufac- 
tured goods and raw materials and the unequal distributions of wealth generated 
by these now labor under a "new form of imbalance" regarding "the trade between 
high-technology and low-technology goods, and between high-knowledge services 
and low-knowledge services, characterized by a pattern of uneven distribution of 
knowledge and technology between countries and regions around the world." 13 



A CONCEPTUAL GENEALOGY ig 



The discourse about the rising centrality of knowledge to economic growth seems 
to imply a claim that human society — and more specifically, certain societies — 
are becoming more knowledgeable, leaving others behind. (Note how Castells 
refers to the "uneven distribution of knowledge . . . between countries and regions 
around the world.") In fact, the claim should be understood to be narrower because 
of the circumscribed form of "knowledge" implicated here. For Castells, for exam- 
ple, knowledge is defined as "a set of organized statements of facts or ideas, pre- 
senting a reasoned judgment or an experimental result, which is transmitted to 
others through some communication medium in some systematic form." 14 The 
focus here is thus on those forms of knowledge that are central to economic pro- 
ductivity and efficiency — namely, technical and scientific knowledge. There are, 
of course, many other kinds of knowledge, such as ethical knowledge or knowl- 
edge of a person. As I will describe later, in its broadest sense, knowledge can be 
described as a competence that only sometimes relates to a technical effect. 

The claim that knowledge is increasingly central to the global economy — or that 
the global economy is today "informational," rather than industrial — thus must 
be understood as a more specific claim: that advances in the ability of humans to 
codify, organize, exchange, and test certain kinds of scientific and technical knowl- 
edge have created revolutionary changes in modes of economic productivity. These 
changes can be traced back many centuries, for example, to the advent of the print- 
ing press — a technology that made copying much more reliable and written texts 
much more widely available and that enabled feedback loops that allowed informa- 
tion to be collected and corrected over time. 15 Newer information and communica- 
tions technologies have intensified this process by increasing the speed of infor- 
mation transfer and processing, earlier through technologies such as the railroad 
and telegraph and more recently through the pervasive networking of digital tech- 
nologies that we associate, for example, with the Internet. 16 This increased capac- 
ity to codify, store, process, and exchange information has been a precondition for 
the development of information-intensive sectors from biotechnology to financial 
engineering. It is also a precondition of the shift toward more flexible, networked, 
information-intensive business systems such as just-in-time production. 17 

Of course, such shifts have implications far beyond the realm of economics. The 
same transformations that have made scientific and technical knowledge more cen- 
tral to the global economy, for example, have also made such knowledge more cen- 
tral to human health. Globally, life expectancy has increased by almost twenty years 
since the 1950s. 18 This can be attributed in substantial part to advances in scientific 
knowledge about disease and to increased access to such knowledge, for example, 
as embodied in better sanitation and vaccines. 19 The rise of new forms of knowl- 
edge management and the application of sophisticated information-processing 



KAPCZYNSKI 



schemes to fields such as health and agriculture means that our relationships to 
our very bodies — how we eat, whether we live — are more intimately governed by 
scientific and technical knowledge and information than ever before. 

For Castells, as well as for earlier theorists such as Daniel Bell, not just our 
economies, but our societies thus have become increasingly knowledge inten- 
sive or informational. In this sociological conception, changes in our ability to 
codify, communicate, and process knowledge have inaugurated a new relation- 
ship between knowledge and society. This shift is reflected, for example, in a new 
ordering of occupations, one in which professional and technical classes gain pre- 
eminence. 20 It is also reflected in governance, because policy formation is newly 
focused around knowledge and expertise "for the purpose of social control and the 
directing of innovation and change." 21 

For example, the rise of statistics and the field of "political arithmetic" led to 
the development of the modern census, which made possible the use of popula- 
tion data in government for the first time. 22 New fields of social knowledge such 
as psychoanalysis, penology, and pedagogy also came into being, subjecting the 
human to new forms of technological production and surveillance. 23 Knowledge 
thus has become central to the "activities of government and to the very formation 
of its objects, for government is a domain of cognition, calculation, experimenta- 
tion and evaluation." 24 From philosophy to medicine, accounting to education, and 
town planning to social insurance, "know-how" and technology make modern gov- 
ernance possible. 25 

New systems of knowledge and information technologies also inaugurate shifts 
in the relationship between individuals and these processes of economic produc- 
tion, social control, and governance. The digital network revolution, for example, 
places the technologies of information production and exchange in the hands 
of (at least some) "average" citizens in a way that was not true in the era of the 
industrial assembly line and the printing press. As Yochai Benkler argues, the con- 
temporary processing power of computers ubiquitously linked together creates a 
platform for new kinds of collaborative human action and production, exemplified 
by projects such as Wikipedia and free software. This shift creates the potential 
for "an increasing role for nonmarket production in the information and cultural 
production sector, organized in a radically more decentralized pattern than was 
true of this sector in the twentieth century." It also creates the possibility of new 
forms of political activism and new relationships between those who govern and 
those who are governed. 26 One new arena where this activism has developed and 
where the relationship between those who govern and those who are governed has 
played out is the realm of intellectual property law, which has expanded globally 
to an unprecedented extent in the past few decades. 



A CONCEPTUAL GENEALOGY 




In 2006, the "ex-gay" group Exodus International sought to force blogger Justin Watt ofjustinsomnia.org 
to remove the parody (bottom) of its billboard (top) from the Internet, accusing the blogger of copyright 
infringement. See Lia Miller, "Both Sides in Parody Dispute Agree on a Term: Unhappy," New York Times, 
March 27, 2006. 



THE RISE OF INTELLECTUAL PROPERTY LAW 

Intellectual property rights are legal entitlements that give their holders the ability 
to prevent others from copying or deploying the covered information in specific 
ways. Patents, copyrights, and trademarks are the most familiar forms of intel- 
lectual property. 27 Each regulates information in a different way. Patents typically 
cover forms of technological invention — once things such as machines and mouse- 
traps and today things such as new molecules, plant varieties, and software. By 
describing his invention and showing that it is new, useful, and "nonobvious," an 
inventor can obtain a patent that gives him the right to prevent others from mak- 
ing, using, or selling the invention for a period of 20 years. Copyrights typically 
cover expressive or literary works — classically, maps, charts, and books, but today 
also things such as sound recordings and software. The holder of a copyright can 
prevent others from copying or performing the protected expression or creating 
"derivatives" of that expression (for example, creating a screenplay out of a novel) 
for upward of 100 years. 28 Trademarks protect the use of a distinctive trade name 
in commerce, permitting the holder of the mark (for example, Rolex™) to restrict 
its use, most centrally to ensure that consumers are not confused about the origin 
of a good. 29 

The grouping of these different modes of regulation under the rubric of intel- 
lectual property is not uncontroversial. 30 Nonetheless, the rubric usefully helps 
us to identify a mode of legal regulation that applies to different areas of tech- 
nology and commerce. In an alchemy that turns immaterial expressions and ideas 
into tradable commodities, intellectual property rights effectively give creators 
the ability to market information while also preventing it from being imitated and 
reproduced by others. These rights can, of course, lead to substantial revenues 
for those who hold them (and also to substantial economic costs for society, as 
I'll describe in a moment). Less obviously, but no less importantly, intellectual 
property doctrines that govern the ownership of creations made in the course 
of employment structure the distribution of benefits between corporations and 
employees. The so-called "work for hire" doctrine, for example, regulates whether 
the inventions or creations that a person makes at work belong to her or to her 
employer, and over the course of the nineteenth and early twentieth centuries, 
this doctrine became far more favorable to employers. 31 

But shifts in intellectual property law, like shifts in the way that knowl- 
edge and information matter, have effects beyond the domain of the economy. 
They also directly mediate human experience, well-being, and freedom. The 
rules of copyright, for example, regulate who can speak and read. Examples of 
copyright owners seeking to censor speech with which they disagree emerge 



A CONCEPTUAL GENEALOGY 23 



with relentless regularity. Copyright also endemically shapes how we learn and 
think, because, for example, it affects the prices of textbooks and the viability of 
online archives. 

Intellectual property law is perhaps at its most controversial in public debates 
where it regulates life itself — that is, in the domain of medicine. Because patents 
limit competition, they tend to raise the price of pharmaceuticals. That can put 
life-saving treatments out of reach, especially for the world's poor. Patents also 
shape the priorities of our medical research and development (R&D) system. Our 
existing system, which relies heavily on patents — and thus on high prices — to 
incentivize R&D has directed enormous sums into treating the ailments of the very 
rich and almost nothing into treating those of the very poor. 

Because intellectual property law regulates strategies of information produc- 
tion and the appropriation of value from information in the marketplace, it has 
become a central battleground in the struggles over the structure and spoils of 
the contemporary economy. Because intellectual property law also regulates much 
more — from how we are able to learn, think, and create together to how and 
whether we have access to the medicines and food that we need to live — it has 
become a central site of political struggle, not just locally, but globally. 

Both trends have been accelerated by the explosive expansion of intellectual 
property rights that has occurred in recent years. In countries such as the United 
States, for example, intellectual property rights have become broader (covering 
more kinds of information), deeper (giving rights holders greater powers), and 
more punitive (imposing greater penalties on infringers). 32 Supplemental measures 
have also been introduced to increase the technological control of rights holders 
and to counter the way that digital technologies facilitate copying. Anticircumven- 
tion laws have been introduced, for example, that prohibit the cracking of techno- 
logical locks, such as forms of encryption that a copyright holder might place on a 
song or DVD to control how it is played. 

This shift has been called a "second enclosure movement," a metaphori- 
cal move that casts it as a modern-day analogue of the privatization of common 
lands that occurred in stages in England from the fifteenth through the nineteenth 
centuries. 33 Metaphors of enclosure and its antipode, the commons, have been 
central to the attempt to mobilize against the encroachments of exclusive rights 
in the digital age. But they are also problematic. 34 Drawing as it does on the post- 
feudal history of England, for example, the concept of enclosure domesticates what 
is better understood as a global phenomenon. The most dramatic expansions of 
intellectual property rights in recent years have occurred across, rather than within 
national borders. 



24 KAPCZYNSKI 



A NEW MODE OF CONQUEST AND IMPERIUM 

In many ways the most striking aspect of the expansion of intellectual property 
law is the shift inaugurated by the TRIPS (Trade-Related Aspects of Intellectual 
Property Rights) Agreement. 35 Adopted in 1995, TRIPS was the brainchild of key 
players from the multinational information industries, that is, companies whose 
primary business is the production and processing of information and informa- 
tional goods. CEOs from companies such as Pfizer, Merck, Monsanto, DuPont, 
General Motors, IBM, and Warner Communications, through a high-powered 
lobbying group known as the Intellectual Property Committee, persuaded the 
United States, Europe, and Japan that the agreement was needed to protect their 
national interests in strong intellectual property protection. 35 

The TRIPS Agreement represented a radical shift in at least three ways. 
Although treaties on intellectual property were not new (and indeed are remark- 
ably old), before TRIPS, such treaties were generally overseen by the WIPO. WIPO 
had no enforcement capability, and countries could choose to join treaties in "a la 
carte" fashion. TRIPS was instead to be part of the new World Trade Organization 
(WTO). Under the WTO's "single undertaking" rule, countries would not be able 
to join the WTO without also adhering to the TRIPS Agreement. Because the WTO 
carried with it a new dispute-resolution system, violations of TRIPS would now be 
punishable with trade sanctions. Finally, the intellectual property standards incor- 
porated into the agreement were far more expansive than those that were in force 
in many countries at the time, particularly for developing countries. For example, 
TRIPS required members to offer patent protection for medicines, to create prop- 
erty rights in new varieties of plants, and to impose criminal penalties for those 
who "pirate" copyrighted movies or trademarked handbags. 

The negotiations that produced TRIPS were a terrain of open struggle between 
countries of the Global North and those of the South. Developing countries gen- 
erally opposed the suturing of intellectual property laws into the new regime of 
world trade, arguing that intellectual property law restricts, rather than promotes 
free trade, that Northern countries had developed under conditions of low intel- 
lectual property protection, and that TRIPS is simply a mechanism to transfer 
wealth from the South (overwhelmingly an importer of informational goods sub- 
ject to intellectual property rights) to the North (whose corporations own the vast 
majority of what constitutes intellectual property today). 

Northern countries, led by the United States and pushed by multinational com- 
panies, were unyielding: Regime change in the area of intellectual property was to 
be a condition for membership in the WTO. The United States was eventually able 
to prevail through "a sophisticated process of trade threats and retaliation" that 
forced key countries to yield. 37 As Peter Drahos analyzes it: 



A CONCEPTUAL GENEALOGY 25 



For the U.S. state there [was] also a payoff. By helping its multinational clientele to 
achieve dominium over the abstract objects of intellectual property, the U.S. goes a 
long way towards maintaining its imperium. ... A global property regime offers the 
possibility that abstract objects come to be owned and controlled by a hegemonic 
state. Algorithms implemented in software, the genetic information of plants and 
humans, chemical compounds and structures are all examples of abstract objects 
that form an important kind of capital. 38 

TRIPS was an exceptionally audacious attempt to extract value from and exert 
control over informational domains in virtually all of the countries of the world. As 
such, it has less in common with localized enclosure movements than with colonial 
strategies of conquest. 

In the words of the great chronicler of empire Joseph Conrad, "The conquest of 
the earth ... is not a pretty thing when you look into it too much. What redeems 
it is the idea only. An idea at the back of it . . . and an unselfish belief in the idea — 
something you can set up, and bow down before, and offer a sacrifice to." 39 Here, 
that idea is one that is not propounded by any particular theorist, but rather that 
is mobilized in political discourse, occupies the realm of popular political culture, 
and is used to justify the dramatic expansion of intellectual property that we have 
seen in recent decades. 

LEGITIMATING INTELLECTUAL PROPERTY IN THE INFORMATION AGE 

The legitimation narrative of intellectual property today is not a coherent theory, 
but a thaumatrope — two different images on a card or disk, recto and verso, that 
when spun on an axis give the appearance of a single, unified image. One image is 
derived from the field of information economics, but omits the skepticism about 
intellectual property present in that field. The other screen is derived from the 
theories of the Chicago School of economics about the superiority of private-prop- 
erty rights in material resources, but suppresses the many significant differences 
between the economics of land and the economics of information. 40 

We can call the result the "despotic dominion" account of intellectual property 
law— the notion that the right to intellectual property is, or should be, as William 
Blackstone described the right to material property, "that sole and despotic domin- 
ion which one man claims and exercises over the external things of the world, in 
total exclusion of the right of any other individual in the universe." 41 Property 
here is defined as the right of a single individual to be the gatekeeper with respect 
to a resource and to act autocratically with respect to decisions about its use. This 
vision of property is sustained by the notion that only the individual owner, and 



26 KAPCZYNSKI 



not the state, community, or nonowners, may make decisions about the price or 
terms of transactions around that property. 

This account should not be confused with actual existing intellectual prop- 
erty law (or actually existing property law, for that matter). 42 Rather, the despotic 
dominion account is a narrative that has been used to justify the aggressive expan- 
sion of intellectual property rights in recent years, and it is thus this narrative that 
A2K confronts as it seeks to change the politics of intellectual property law today. 

The first image in the despotic dominion account draws selectively on the field 
of information economics, arguing that intellectual property is needed to promote 
investment in informational goods. Information, we are told, is typically expensive 
to produce, but cheap to reproduce. For example, it is relatively expensive to synthe- 
size and test a new pharmaceutical compound or to produce a major motion picture. 
Under today's technological conditions, it is also relatively cheap to reverse engineer 
a drug or to copy a DVD. In an unregulated market, second-comers could reproduce 
the drug or movie, paying only the cost of copying and without paying the full costs 
of the producing of the drug or movie in the first place. These "free riders" would be 
able to drive the innovator from the marketplace, because they would be able to sell 
the drug or movie more cheaply. The result: Rational actors will not develop drugs or 
make major motion pictures, because they will be unable to turn a profit, and indeed 
may suffer a loss, being unable to recoup their original investment. 

Enter the deus ex machina of intellectual property rights. Patents and copy- 
rights give individuals (or more likely, firms) the right to prevent others from 
copying their creations for a period of time. This lets them recoup their invest- 
ments and make a profit. Exclusion rights thus generate markets in information, 
solving the free-rider problem and aligning individual incentives with social good. 

Consider the suppositions of this first image: Creative and scientific works 
are best generated by rational, self-interested market actors who are motivated 
by profit. Intellectual property law provides the control needed to "incentivize" 
this creativity, because it permits individuals to profit through the sale of infor- 
mational goods. Individual legal entitlements such as these are necessary because 
rational creators will not create if they cannot profit and/or if others can ride free. 
When they can profit, creators will create in accordance with social welfare, as 
expressed by demand for commodities in the marketplace. In this model, if we 
want creativity and the benefits associated with it, we must pay for it. The best, 
most efficient way to pay is with a system of private, individual rights. 

This account is not to be confused with theories of intellectual property as 
articulated in the field of information economics. That field tends to be much more 
ambivalent about the effects of intellectual property rights because of the ineffi- 
ciencies that accompany them. 



A CONCEPTUAL GENEALOGY 27 



In economic terminology, information is a "nonrival" good: One person may 
"consume" it without limiting the amount available to another. Another way of 
putting this is that information — inherently — is not consumable. If I have an 
apple, either you can eat it, or I can eat it. (We can share it, but we can't each 
have the whole apple.) But if I make up a catchy tune, we can both sing it. I won't 
have any less of it because you have more of it. All information — from cooking 
recipes, to scientific formulas, to MP3 files — has this infinitely shareable qual- 
ity. In economic terms, the marginal cost of production of information is zero. 43 
Once a scientist divines a new scientific theory, she can share it freely without 
spending any more energy or time to produce it again. 44 Because the marginal cost 
of information is zero, the ideal price of information in a competitive market is 
also zero. As a result, intellectual property rights create "static" (short- run) inef- 
ficiencies. They tend to raise the prices of informational goods above their mar- 
ginal cost of production, meaning that fewer people have access to these goods 
than should. 45 

Where there are no adequate substitutes for a good, as may be the case with 
a patented medicine, intellectual property rights can also generate monopolies. 
Under conventional economic models, a monopolist will raise prices and reduce 
output, generating more profits for itself, but also generating deadweight social 
loss — a further static inefficiency. 46 Intellectual property also has ambiguous 
effects on dynamic (long-run) efficiency. Because information is both an input and 
an output of its own production process, intellectual property gives previous cre- 
ators the power to tax new creators, thus raising the cost of producing the next 
generation of innovations and pricing out some potential creators. 

Other mechanisms to promote investment in new informational goods are 
widely discussed in the field of information economics. The government can pay, 
as it often does, for example, with direct grants to scientists or artists or by the 
creation of financial or reputational prizes that can induce innovation. When 
innovation and creativity are paid for in this way, the results can be made 
freely available, as they are, for example, when the U.S. government funds cer- 
tain basic scientific research or the creation of weather or mapping data. This 
eliminates the inefficiencies associated with intellectual property rights, lead- 
ing eminent economists to conclude that government provisioning is superior 
to intellectual property rights as a strategy to solve the provisioning problem 
of information. 47 

So why, then, should we conclude that private intellectual property rights are 
superior to other systems of promoting creativity and innovation, such as direct 
government funding? Here, the image drawn from information economics is 
spun together with a narrative drawn from theories of the economics of private 



28 KAPCZYNSKI 



property rights in material resources (such as land) popularized in the 1980s and 
1990s. Such theories, often associated with the Chicago School of economics, have 
their roots in the famous account that Harold Demsetz developed of the ability 
of private property to solve the "tragedy of the commons." 48 When property is 
held in common, Demsetz argued, individuals will fail to invest in its maintenance 
or improvement, because they cannot keep others from reaping the benefits of 
their efforts. Common pastures will be overgrazed, because each individual farmer 
has an incentive to graze his livestock beyond the point of sustainability. If his 
sheep don't eat the grass, another farmer's sheep will. A system of private prop- 
erty rights aligns farmers' incentives with social welfare, because it permits them 
to "internalize" or capture the benefits of their investment in their land, as well as 
suffer the harms of their failures to invest. 

But why is private property superior, say, to community-negotiated rules limit- 
ing the hours that a farmer could graze, or a government tax-and-spend regime 
that organizes investments in land? Here the antiregulatory theories of the Chi- 
cago School come in. Individuals are characterized as generally having information 
superior to that of the government (or a collective) in making investment deci- 
sions, as well as in valuing uses in land. If they are free to transact, on this theory, 
"private" property is more efficient than communal or state-based regulation of 
property (or, more accurately, private property is the most efficient form of state- 
based regulation of property, since of course, a private-property regime itself is a 
form of regulation). Individual farmers will know best, for example, whether land 
can most profitably be used for sheep grazing or for peach farming. If a peach 
farmer is able to offer to buy a sheep farmer's property for more than the sheep 
farmer could make from farming it himself, the property will change hands and be 
turned into an orchard. Since the latter use is more profitable, it is associated with 
higher social welfare. Society is thus benefitted by the mutually selfish behavior of 
the farmers, if they are given the tools of private property rights. Antiregulatory 
theorists are also skeptical of government intervention in markets because of the 
concern that state regulations or programs provide a soft target for lobbyists seek- 
ing to capture benefits for themselves. 49 

Even as applied to material property such as property in land, there are many 
difficulties with this account, some of which I'll discuss below. More importantly 
for our purposes at this point, the sketch drawn from such Demsetzian theories 
suppresses many of the important distinctions between information and material 
goods — distinctions that are treated as essentially important in the construction 
of the first image. But explaining precisely why this is so should await a discussion 
of the development of the concept of the "commons" in the access to knowledge 
movement— for it is that discussion that has made this point clear. 



A CONCEPTUAL GENEALOGY 29 



INVENTING A POLITICS FOR THE INFORMATION ACE 

Against this backdrop of enclosure and conquest has emerged a field of activism 
that here goes under the name of the access to knowledge movement. One mark 
of this new mobilization is the attempt to articulate a common language in which 
to contest the contours of existing intellectual property rules. That language has 
become centered on a few key terms such as the "public domain," the "commons," 
"sharing" or "openness," and "access" that are mobilized both to destabilize the 
despotic dominion account of intellectual property and to conjure forth an alterna- 
tive ethic of the conditions of creativity and freedom in the information age. 

THE PUBLIC DOMAIN 

The concept of the public domain is central to the new politics of A2K, although 
not, as we will later see, always uncontroversially so. It is drawn from judicial and 
legal discourse, where it has long been used to refer to informational works that 
are not covered by intellectual property law, for example, because the copyright or 
patent term has expired. 50 In the 1980s and 1990s, scholars critical of the expansion 
of intellectual property rights seized upon the term to carve out a positive iden- 
tity for the "outside" of intellectual property 51 As James Boyle put it, "The envi- 
ronmentalists helped us to see the world differently, to see that there was such a 
thing as 'the environment' rather than just my pond, your forest, his canal. We 
need to do the same thing in the information environment. We have to 'invent' the 
public domain before we can save it." 52 Key here was early work of David Lange, 
who argued that no intellectual property right "should ever have affirmative rec- 
ognition unless its conceptual opposite is also recognized. Each right ought to be 
marked off clearly against the public domain." 53 

Lange 's early articulation of the term marks the abiding influence of intellec- 
tual property law on the concept of the public domain. The public domain here is 
defined as the "conceptual opposite" of the domain of exclusion rights protected 
by intellectual property. The same relationship is emphasized in James Boyle's def- 
inition of the public domain as "material that is not covered by intellectual prop- 
erty rights" as well as "reserved spaces of freedom inside intellectual property." 54 

In the simplest sense, then, A2K advocates use the term positively, to bring 
into focus the negative space of intellectual property law and to articulate its 
importance for innovation and creativity. The public domain thus becomes not just 
the opposite of intellectual property, but also an essential — and endangered — 
component of our creative and informational ecology. Included herein are not just 
older works in the literary or technical arts, but also resources such as language 
and scientific theories that are free of intellectual property rights and to which we 
have a common right. Many of these resources were never protected as intellectual 



30 KAPCZYNSKI 



property at all, thus demonstrating that private rights are not necessary to the pro- 
duction of all informational goods. Such goods and the ability to use them freely 
are also clearly central to our ability to think and create. The emphasis on the pub- 
lic domain thus is used to counter "the romantic idea of creativity that needs no 
raw material from which to build" that characterizes the despotic dominion theory 
of intellectual property and to call attention to the need of every creator to have 
access to the scientific or cultural domain that precedes and surrounds her. Boyle, 
for example, contends that the "public domain is the place we quarry the building 
blocks of our culture. It is, in fact, the majority of our culture." 55 

The A2K movement calls upon the public domain in this way to make the case 
that the account offered by the despotic dominion theory of intellectual property 
is radically incomplete as a description of both the world as it is and the world as 
it should be. Even now, in the most absolutist period of intellectual property law 
we have known, our creative world remains largely beyond the reach of intellec- 
tual property rights. And intellectual property rights as we know them bear little 
resemblance to property rights over material resources, with far greater freedoms 
reserved for nonowners. If so-called "real property" rights worked like copyrights, 
for example, the home you built would be turned over to the public some fifty 
to seventy years after your death. In the meantime, if others wanted to use your 
front porch to criticize you, you would have to permit it. 56 It turns out that ideas 
are different from material goods and are treated as such by the law. The concept 
of the public domain calls attention to this fact — a fact that the despotic dominion 
account papers over. 

The concept of the public domain calls the despotic dominion account of intel- 
lectual property into question in yet another way, by emphasizing the "public" 
values that a public domain serves — and that the privatization of intellectual cre- 
ations threatens. This is the public domain as opposed to the private domain — the 
domain that the despotic dominion conception of intellectual property equates 
with the public good. 

We can begin by asking what is "public" about the public domain. Is it public 
like a public park? Like public assistance? Like the public good? Like a public fig- 
ure? A2K narratives about the public domain treat what is public as synonymous 
with what is "open to all," but in two different dimensions: that of permission and 
that of price. 

Public-domain material is presented as important to our creative ecology, on 
the one hand, because one need not ask permission to use it — which is to say, 
no one has the legal privilege to deny another the ability to use it. If you want to 
rewrite a Jane Austen novel, retaining most of her words, but inserting zombies, 
no representative of Austen's estate can deny you permission, because the work 



A CONCEPTUAL GENEALOGY 



is now in the public domain. 57 A2K advocates thus celebrate the public domain as 
a place free of the political control or personal caprice of others. This is contrasted 
with the world of intellectual property, where owners of works may stop others 
from using their creations in ways of which they disapprove. 58 When DJ Danger 
Mouse became an overnight sensation for an album remixing the Beatles and Jay-Z, 
for example, he also earned the attention of lawyers for the Beatles's label, who 
forced him to stop distributing the album. Copyright facilitates consolidated con- 
trol and disrupts semiotic recoding. The need to obtain permission, A2K advocates 
argue, is thus in tension with the desire for an open and democratic culture. 59 

The public domain is "public" in another sense. Like a public street, it may be 
traversed and used by all comers without individualized permission. But also like 
a public street (if not necessarily a public highway), it may be traversed without 
payment. (In the phraseology of Richard Stallman of free software fame, it is both 
"free as in speech" and "free as in beer.") No one pays for what they take from the 
public domain (there is no licensing fee), so works available in the public domain 
are available, in theory, at or close to their marginal cost of distribution — the 
cost of printing and selling a book, for example, without an additional fee for the 
author who wrote it. And of course, in a world of pervasive digital networks, the 
cost of distribution indeed moves toward zero, meaning that works out of copy- 
right may be available for no cost at all. The public domain thus has a differential 
value for those who have limited financial means. In this sense, it is public in the 
way that public assistance is public — it represents a kind of state subsidy for those 
who cannot afford the licensing fees and lawyering costs associated with private 
markets in information. 60 

THE COMMONS 

The commons is another concept critical to the attempt by A2K theorists to con- 
struct a collective object for their politics. It draws upon the history of property 
in land and more particularly upon the enclosure of communally managed field 
and forest resources in Europe. Unlike the public domain, the commons as con- 
ceived of by the A2K movement is governed, 61 but unlike private property, the 
commons is governed collectively 62 It is not free of the requirement of permission 
(or, necessarily, of price), but demands permission from a collective, rather than 
an individual. 

Free software is often cited as the paradigmatic example of an informational 
commons. 63 It is written by legions of volunteers who are not hierarchically orga- 
nized or governed in the way that employees within a firm are organized and gov- 
erned. This is not to say that there is no governance of open-source projects — on 
the contrary, such projects may be highly organized and closely managed. Such 



32 KAPCZYNSKI 



projects are also not entirely without either hierarchy or stratification. 64 But they 
are more modular, participatory, collaborative, and open than equivalent projects 
organized in proprietary firms. 65 

Free software depends upon a "copyleft" licensing scheme developed by pro- 
grammers. The best- known such license, the GNU General Public License or GPL, 
turns copyright on its head by mandating sharing, rather than exclusivity — it 
permits users to modify, copy, and share the covered work as long as they pass 
along to others these same freedoms. 66 This is a commons of enforced cooperation, 
where those who participate are assured that their efforts will manifest themselves 
in a collective product that they may all access in the future with the added benefit 
of one another's contributions. Programmers do not have the ability to determine 
unilaterally the terms of the licensing of free software, but decisions about free 
software are subject to community comment and deliberation and to the collec- 
tive ability of communities of programmers to vote with their labor hours. 67 They 
also have certain rights that those working in a proprietary context as a rule would 
not — primary among them, the assurance that they will continue to have access to 
the software they help produce on equal terms with all others, to exploit for profit 
or otherwise. 

The commons as invoked by A2K advocates works in two ways to undermine 
the despotic dominion conception of intellectual property. At times, A2K theorists 
call upon the term to distinguish a material commons (for example, a grazing com- 
mons or a collectively managed fishery) from a commons of the mind. The despotic 
dominion justification for private property, recall, is based on the presumption that 
individuals will overuse a resource if not disciplined by private property rights. 

But as Boyle explains it: 

Unlike the earthy commons, the commons of the mind is generally "non-rival." 
Many uses of land are mutually exclusive. If I am using the field for grazing, it may 
interfere with your plan to use it for growing crops. By contrast, a gene sequence, 
an MP3 file, or an image may be used by multiple parties; my use does not interfere 
with yours. To simplify a complicated analysis, this means that the threat of overuse 
of fields and fisheries is generally not a problem with the informational or innova- 
tional commons. 68 

In other words, we are more likely to see in the informational domain what property 
scholar Carol Rose has called a "comedy of the commons" than a tragedy of the com- 
mons, because more use tends to produce social gains, rather than social losses. 69 

But A2K advocates also use the concept of the commons to invoke the suc- 
cessful history of common property schemes in material goods and thus to under- 
mine the contention that individual management of resources is superior to 



A CONCEPTUAL GENEALOGY 33 



collective management. Elinor Ostrom recently won a Nobel Prize in economics, 
in part for the work she did to document and analyze prosperous and stable com- 
mons regimes governing rival resources such as land and fisheries, demonstrating 
that communities can organize both investment in and extraction of resources to 
ensure sustainability. 70 As Roberto Verzola points out in this volume, for example, 
a herder with a long-term and cooperative viewpoint would see the potential for 
the collapse predicted by theorists of "the tragedy of the commons" and work with 
others to avoid that result. 71 With a presumption of cooperation and foresight, the 
narrative of the tragedy of the commons can thus be inverted, resulting in "a sys- 
tem of insurance or social security, a type of commons that reduces individual risk 
by pooling resources." 72 

The concept of the commons is thus intended to do important work to dele- 
gitimate the despotic dominion conception of intellectual property. On the one 
hand, it calls upon the differences between the immaterial and the material to 
demonstrate that tragedy is far less likely in the former case. On the other, it 
rejects the view that tragedy necessarily follows common management of mate- 
rial resources, insisting instead that collective management can work. It insists 
upon the viability of an alternative governance regime for intellectual property — 
one characterized by relatively flat hierarchies and where the rights of individu- 
als to participate in decision making as well as to participate on equal terms as 
creators and beneficiaries are central. To call upon the image of the commons is 
to insist that communities, without the imposition of market or governmental 
ordering systems, have the power and perhaps the right to set the terms of their 
collective endeavors. 

Here the discourse of the commons meets up with that of the public domain, 
suggesting that more communal strategies of governance do better than a despotic 
dominion model at facilitating broadly distributed collaboration, soliciting forms 
of effort and motivation that may be crowded out in a corporate and proprietary 
(which is to say, profit-motivated, more hierarchical) context, and facilitating par- 
ticipatory decision-making processes. 

SHARING AND OPENNESS 

Sharing and openness are prominent memes in the A2K movement, deployed, to 
name just a few examples, for "share and share alike" copyright licenses, "open- 
source software," "open standards," and "open-access publishing." 73 

Sharing and openness are here posited against the ethic of exclusion embod- 
ied in the despotic dominion conception of intellectual property. A "share and share 
alike" license in the context of copyright, for example, uses the exclusive right per- 
mitted by copyright against itself, requiring those who modify or build upon the 



34 KAPCZYNSKI 



work to share their work with others. Copyleft licenses are premised on the same 
move. In open standards and open-access publishing, "openness" refers to different 
practices. The former insists that technical standards not be dominated by the rights 
of certain intellectual property owners and the latter that certain publications (for 
example, those that are the product of research funded by the government) be made 
available in databases that are available generally to the public without a fee. 74 

What work does an insistence on sharing and openness do when measured 
against the despotic dominion account of intellectual property? For one thing, it 
raises a challenge to the neoclassical model of the rational, self-interested actor 
upon which that account is based. As Yochai Benkler has noted, the very existence 
of free software, which is developed largely by unpaid volunteers who participate 
on the condition that their work will be shared freely with others, demonstrates 
that a model based on profit-driven self-interest is radically incomplete. 75 There is 
room for debate over the volunteers' motivations, but as Boyle puts it: 

Assume a random distribution of incentive structures in different people, a global 
network: transmission, information sharing and copying costs that approach zero, 
and a modular creation process. With these assumptions, it just does not matter 
why they do it. In lots of cases, they will do it. One person works for love of the 
species, another in the hope of a better job, a third for the joy of solving puzzles, 
and so on. . . . Under these conditions . . . we will get distributed production without 
having to rely on the proprietary/exclusion model. The whole enterprise will be 
much, much, much greater than the sum of the parts. 76 

The notion that the "whole is greater than the sum of its parts" is central to 
understanding the ideal of sharing and openness. If the whole is greater than the 
sum of its parts, the parts cannot be adequately described or divided from one 
another. In other words, we cannot isolate and locate credit, labor, or value for 
creative endeavors in any individual or set of individuals. The maxim can also be 
understood as an insistence that the thing being "summed" — here, the creative 
endeavor — happens not within individuals, but among a group. This is an insis- 
tence on the generativity of the crowd, on the notion that there is a creative and 
productive force that resides between, rather than within individuals — or more 
radically, in the infrastructure of their connection, in the network itself. As free- 
software theorist Eben Moglen memorably puts it, "if you wrap the Internet around 
every person on the planet and spin the planet, software flows in the network. It's 
an emergent property of connected human minds that they create things for one 
another's pleasure and to conquer their uneasy sense of being too alone." Intellec- 
tual property law is then "the resistance in the network," disrupting, rather than 
generating creativity 77 



A CONCEPTUAL GENEALOGY 35 



We can detect here a certain commitment to the unknowability and unquan- 
tifiability of the creative endeavor. We cannot, A2K advocates suggest, fully 
catalogue and locate human motivations and capacities, nor can we individualize 
them, as if they are established prior to and apart from exchanges between peo- 
ple. "Knowledge" and "information" are also cast as highly complex phenomena 
that inevitably elude strict control or management. (How do you survey the limits 
of an idea?) The domain of access to knowledge is thus pictured as a domain of 
unbounded, unboundable exchange. This vision is of course opposed to the des- 
potic dominion notion of private property in ideas and to neoliberal theories that 
put their faith in "privatization, and the creation and defense of secure property 
rights as the cure for all ills." 78 

Ideals of openness and sharing, like those of the commons and the public 
domain, also align the A2K movement with the political values of self-determina- 
tion and autonomy, as well as those of collective governance. As one open-source 
proponent puts it: 

Proprietary software increases the dependence of individuals, organizations, and 
communities on external forces — typically large corporations with poor track 
records on acting in the public interest. There are dependencies for support, instal- 
lation and problem fixing, sometimes in critical systems. There are dependencies for 
upgrades and compatibility. There are dependencies when modification or extended 
functionality is required. And there are ongoing financial dependencies if licensing 
is recurrent. Political dependencies can result from the use of proprietary software, 
too. . . . Nearly exact parallels to this exist in agriculture, where the patenting of seed 
varieties and genome sequences and the creation of non-seeding varieties are used 
to impose long-term dependencies on farmers. . . . Proprietary software not only 
creates new dependencies: it actively hinders self-help, mutual aid, and community 
development. 79 

Others declare more grandly that "access to software determines who may par- 
ticipate in a digital society" and conclude that "only the Free Software model grants 
equal rights and freedoms to all Member States, their corporations and citizens." 80 
Or as the founder of the Linux operating system, Linus Torvalds, puts it, open- 
source software is like "democracy in the sense that you don't surrender control." 81 

The demand for sharing and openness is thus also a demand that the ability 
to access and manipulate knowledge and information be democratized. 82 What is 
being shared and opened is not just a set of commodities, but also the processes by 
which we communicate with one another and create together and the processes by 
which we act as citizens of our increasingly informational societies. 



36 KAPCZYNSKI 



ACCESS 

A2K also invests with great significance the concept of "access." First associated 
with the access-to-medicines campaign, the importance of the term to the broader 
coalition is perhaps best marked by its presence in the name "access to knowledge" 
itself. 83 The demand for access is an inherently relational one — a claim from those 
excluded that they be included, that they be given something that others already 
enjoy. In this sense, it marks perhaps the only — or at least the most prominent — 
demand for distributive justice emanating from the A2K movement, which other- 
wise borrows more from discourses of freedom. 84 

How, then, are we to understand this demand? We can begin by considering 
the development of the campaign for access to medicines. Although the claim 
might seem to be very simply a demand that medicines available to the rich also 
be made available to the poor, from its inception, the movement has been inti- 
mately bound up with claims about intellectual property. It emerged from the cru- 
cible of the global HIV/AIDS pandemic and specifically from the recognition that 
treatment would never be available to the vast majority of those who needed it 
unless the prices of medicines could be reduced. At the time that the campaign 
began, AIDS medicines sold for about $10,000 per patient per year. Activists versed 
in intellectual property law such as James Love teamed up with groups such as 
Medians Sans Frontiers to demonstrate that this price is not a fact of nature or a 
reflection of the sophistication of antiretroviral medicines, but rather an artifact of 
patent law. Generic copies of the medicines cost as little as $350 per year (and even 
less today), but patents — and the aggressively propatent trade policies of coun- 
tries such as the United States — stood in the way. 

The demand for access to AIDS medicines has thus been, from the beginning, a 
demand for access to copies of AIDS medicines. Or, as the logo of the AIDS activist 
group Act Up-Paris puts it: 



COPY=RIGHT 



The emblem illustrates two important elements in the demand for access. First, 
claims to access are framed squarely against the backdrop of intellectual property. 
Second, they are rooted in claims of right that supersede the claims of right made 
by owners of intellectual property. The right to the copy claimed by activists is 
written over the right of the copy claimed by rights holders. 

The demand for access thus appears first as a refusal. It emanates not from 



A CONCEPTUAL GENEALOGY 37 



the discourse of intellectual property, but from the language of human rights. 85 It 
seeks to elevate the latter over the former, as through the demand, commonly seen 
at access-to-medicines demonstrations, for "patients' rights not patent rights." 

At the level of the slogan, the concept of access seems to embody an outright 
rejection of the logic of intellectual property and of the type of cost-benefit analy- 
ses and arguments about innovation upon which it is based. In fact, however, the 
discourse of access-to-medicines campaigners has become intimately bound up 
with the logic of intellectual property, because their attempt to contest the legiti- 
macy narrative of intellectual property law has drawn them into the economic dis- 
course that dominates the field. 

As activists sought to challenge the existing law of intellectual property, they 
found themselves up against the despotic dominion account of intellectual prop- 
erty. Calling upon this account, pharmaceutical companies insisted that they, too, 
are in the "access" business and that patents are the only way to ensure the devel- 
opment of new medicines. The conditions of access are contested, that is, pre- 
cisely in the terms of the discourse underlying the concept of intellectual property, 
requiring A2K advocates to do more than simply argue that they are for access 
because they are opposed to exclusive rights in medicines. The demand for access 
is by necessity constructed on a deeper theory of what it means to make medicines 
accessible — one that is built upon the values of freedom and openness that are 
evolving within the discourse of the A2K movement, but anchored in the demands 
for distributive justice that motivate the call for access. 

Access-to-medicines campaigners argue, for example, not only that patents 
artificially raise prices and thus hurt patients, but also that they do not provide 
the innovation benefits that the despotic dominion account claims for them, par- 
ticularly for the poor. They point out, for example, that patent-based innovation 
systems link innovation to high prices. Because the poor cannot pay these high 
prices, patent-based companies ignore the needs of the poor and instead cater to 
the needs of the rich. Thus, we have a pharmaceutical R&D system that prioritizes 
drugs for baldness and erectile dysfunction over lifesaving treatments for ailments 
such as tuberculosis and malaria. 

They also point out that patents can create barriers to research and thus inter- 
fere with innovation — and argue that they are particularly likely to do so where 
poor patients are concerned. They point out, for example, that multinational com- 
panies that make AIDS drugs were unwilling to undertake the negotiations that 
would have been needed to combine the multiple drugs needed for the HIV cock- 
tail into a single pill that would be easier for patients to take. The work was first 
done not by patent-holding firms, but by Indian generic companies that were 
unconstrained by patents. Like the discourses of the public domain and openness, 



38 KAPCZYNSKI 



the discourse of access here attacks the despotic dominion account's claim that 
intellectual property invariably promotes innovation. Unlike the other concepts, 
this one makes central a distributive justice claim — that freedom from intellectual 
property restrictions is especially important to the poor. 

The access-to-medicines campaign also takes aim at the model of private con- 
trol that is central to the despotic dominion account. Notably, access-to-medicines 
campaigners have consistently opposed drug company donation programs, staking 
a claim for a form of access that is defined by nonexclusive sharing of the informa- 
tional component of drugs, rather than their price per se. 87 

Why? Why would it matter where the drugs come from, as long as they come? 
For access-to-medicines campaigners, the issue is one of accountability and con- 
trol. They argue that drug company donation programs are unacceptable because 
they leave power over life in the hands of private actors, who retain the privilege 
of charity, the privilege to make good on their promises or not. Overriding pat- 
ents is cast as a way to insist instead on values of participation and accountability. 
The demand for access to medicines, like the call for free software, thus places the 
concept of democracy at the center of the A2K movement and opposes it to the 
despotic dominion conception of intellectual property. 

FOUR QUESTIONS FOR A2K 

The concepts that A2K activists are developing and articulating and around which 
they are mobilizing create a set of political commitments and the contours of a 
movement through a process of accretion. These concepts often coincide, but they 
are also at times in tension with one another. The same can be said of some of the 
values and discourses that A2K activists draw upon when making their arguments. 
Having mapped the central concepts of the discourse of A2K allows us to pose a 
series of questions about the conceptual and political commitments being invoked. 
The answers will help determine the future shape and implications of this new 
field of politics. What is the nature of the freedom that A2K demands? Is A2K 
committed more to the model of the public domain or of the commons, and can it 
be committed to both? Is information really different enough from material goods? 
And finally, can the A2K movement in fact make good on its attempt to create a 
politics not just of information, but also of knowledge? Or to put it another way, 
what are the proper limits of the politics of A2K? 

WHAT IS THE NATURE OF THE FREEDOM THAT A2K DEMANDS? 

Often, A2K thinkers speak of freedom (such as the freedom of the public domain) 
as a place free of permission. Lawrence Lessig states it most plainly: "The opposite 



A CONCEPTUAL GENEALOGY 39 



of a free culture is a 'permission culture.'" 88 But are A2K advocates really commit- 
ted to a vision that posits freedom as a space where one never needs permission — 
as a space beyond control? If so, what of the very substantial controls that some 
groups, from free-software programmers to proponents of traditional knowledge, 
seek to impose upon certain forms of knowledge? Creative Commons, a high-pro- 
file organization that Lessig himself founded, offers individuals a set of copyright 
licenses that they can use to give others more freedoms than copyright law other- 
wise would. But some of these licenses — not uncontroversially within A2K circles — 
preclude others from creating derivative works, making use of precisely the power 
of permission in the service of authorial control. 

In fact, no such simple principle of opposition to control can be derived from 
the thought of A2K. If it could, it would commit A2K also to a series of what are 
likely to be untenable positions with respect to nonproperty forms of control that 
can be described as demands for "permission," such as those related to privacy and 
network security. Is it in fact possible to assume a simple opposition between free- 
dom and control, or are the two instead intimately interconnected and interdepen- 
dent in the age of digital networks? 89 A2K advocates must envision a particular 
mode of control or demand for permission that they oppose. How, though, should 
this be characterized? 

The A2K movement's conception of freedom also contains within it a certain 
fractured relationship to markets. The public domain, for example, is sometimes 
figured as a space free from markets, a space where noncommercially motivated 
creators have the resources and room to play. 90 At other times — and perhaps more 
often — it is figured as a space free for markets where not only amateurs can for- 
age, but where corporations can compete without monopolies, to the benefit of 
the public as consumers. 91 Can the same domain be both the space of freedom 
from commerce and the space of freedom for commerce? 

When A2K advocates articulate the public domain as a space that is equally — 
and properly — open to the exploitation of capital and communities alike, it sug- 
gests that this competition is itself a free and equal one. But is the public domain 
in fact universally "free" in a substantive fashion, when those who create from 
its resources may enclose the results? Does leaving the public domain free in this 
sense simply mean that those with resources will be able to make use of this (pub- 
licly renewed and subsidized) resource and then enclose the results, to the sys- 
tematic disadvantage of those who continue to operate outside of the confines of 
property? Is this freedom a structurally unequal freedom, one that can be rem- 
edied only by a positive concept of public property (or of a commons) that cannot 
be the subject of such extraction? 

This question is raised most acutely by groups focused on the Global South, such 



40 KAPCZYNSKI 



as the farmers' rights group GRAIN, which expresses skepticism about "the mer- 
its of concepts such as the 'public domain' ... if putting seeds in the public domain 
means Monsanto can inject them with Terminator genes to destroy peasant agri- 
culture." 92 The muted (or repressed) debate within the A2K movement over the 
proper status of traditional knowledge (is it rightfully the property of local com- 
munities, or part of the public domain open to all?) also evinces the strains 
of this tension. 93 

Finally, can the freedom imagined by A2K be produced by merely formal lack 
of (the wrong kind of) constraint, for example, by the lack of the constraints 
imposed by intellectual property law? Or does it require something more substan- 
tive, an affirmative ability, for example, to access works in the public domain, or 
the tools of the new "remix culture"? 94 Is the freedom of the public domain or the 
commons really worthy of the name if the majority of the world has no access 
to the means needed to participate in it— for example, education, computers, and 
affordable access to digital networks? At the close of 2007, only one-fifth of the 
world's population was using the Internet, and this use was highly skewed geo- 
graphically: Only 4 percent of people in sub-Saharan Africa had such access. 95 
Although A2K thinkers invoke a robust conception of freedom that would require 
the ability in fact to access the goods of which they speak, in practice, they devote 
little attention to the profound inequalities in access to digital networks. 96 Can 
A2K advocates really claim to have a vision of freedom in the digital age if they do 
not do more to theorize and demand affirmative access to the tools to create and 
exchange information and knowledge? 

IS A2K COMMITTED MORE TO THE MODEL OF THE PUBLIC DOMAIN 
OR OF THE COMMONS? CAN IT BE COMMITTED TO BOTH? 

The A2K movement valorizes the space of both the public domain and the com- 
mons, and yet as we've seen, these two spaces are governed in importantly different 
ways. The commons is controlled, often through the use of intellectual property 
law itself. The public domain is instead a space beyond intellectual property law, 
where no one has the right to extract permission or price. 

Can the A2K movement be committed to both? If so, this would require 
restructuring how the commons and public domain are each understood. A2K 
rhetoric today arguably pastoralizes the commons, eliding the degree to which 
communal decision making may be characterized by hierarchy and exclusion, 
rather than by equality and open participation. To put it differently, why should 
we view a collective despot as an improvement over an individual despot? 

In fact, A2K advocates cannot and most of the time do not envision the com- 
mons as just any kind of collectivity. Some systems of collective management are, 



A CONCEPTUAL GENEALOGY 41 



after all, fully compatible with expansive conceptions of intellectual property 
rights, such as the collective rights organizations that enforce the rights of copy- 
right holders in music. 97 Corporations that mobilize intellectual property norms in 
the service of exclusivity and maximal profit are of course in some sense "collec- 
tive" entities, governed by groups of corporate officers and answerable to share- 
holders. The A2K commons thus cannot be understood simply as a preference for 
collective over individual governance. Some content must be given to the concept 
of the collective and its terms of engagement. Like the concept of freedom, the 
concept of the commons (if it is to lay claim to an ethic that differs substantially 
from that of intellectual property) must be more substantively defined. 

As the example of free software discussed above suggests, when A2K advo- 
cates invoke the commons, they conjure forth a community that labors cooper- 
atively and that labors under shared norms. Those norms differ not just in their 
recognition rule — the metarule that determines what counts as valid law — but also 
in their substance from the rules of intellectual property. 98 The commons of soft- 
ware in fact has much in common with the public domain, because its rules of 
engagement are similar to those that characterize the public domain. Still, they 
are not identical. Individuals can take from the public domain and not replenish 
it with their creations. Moreover, its contours and rules are not established by 
a community of creators, but rather by a community of citizens who authorize 
the law of intellectual property — which in turn defines the limits of the public 
domain. Which is the appropriate community of lawmakers, and which the appro- 
priate relation to what came before? 

IS INFORMATION REALLY DIFFERENT ENOUGH? 

Within the emerging ideology of the A2K movement is a strand that envisions 
it as postideology, even, perhaps, postpolitical. This is evident particularly in the 
self-styled political agnosticism that characterizes the free and open-source soft- 
ware movement and in the writings of A2K thinkers who are most immersed in 
the discourses of open source and the revolutionary potential of the networked 
digital age. 99 In this volume, Benkler, for example, argues that the ideas of A2K, 
and in particular of "the information commons and the rise of networked coopera- 
tion" can "subvert the traditional left-right divide . . . and provide the platform on 
which political and economic interests meet around a common institutional and 
organizational agenda." A2K can appeal, he argues, to "libertarians, liberals, the 
postsocialist left, and anarchists," unifying forces on the left and right that usually 
understand themselves to be at odds with one another. 100 

Such ideological Catholicism, even pragmatism, is perhaps one of the most 
appealing aspects of the A2K movement, particularly at a time when some on the 



42 KAPCZYNSKI 



left are calling for a more serious reckoning with the benefits of well-regulated 
markets and the dangers of ideological rigidity. 101 But the notion that the A2K 
movement can exceed the traditional divide between classical free-market liberals 
and the progressive left, that A2K can embrace both the market and the nonmar- 
ket, and that A2K advocates need not decide between frames of freedom, justice, 
or efficiency is surely contestable. 

At its core, the sense that the A2K movement can exceed these divides rests 
crucially on the claim that information is subject to different dynamics than the 
world of material goods, particularly in the networked digital age. For Benkler, 
for example, it is "the rise of the networked information economy [that] has cre- 
ated the material conditions for the confluence of freedom, justice, and efficacy 
understood as effective learning and innovation." That is because in this new 
environment, productivity and efficiency can be achieved through increasingly 
open dynamics of sharing and cooperation, both within and outside of markets. 
"Freedom and efficacy, then, will be the interface with both liberalisms, market 
and social. Justice and freedom in the sense of the dissipation of structured, stable 
hierarchical power will be the interface between liberalism and the left." 102 

But the question is, is information different enough? As noted above, some 
within the A2K movement doubt that the poor can compete in a realm of "free" 
information if that freedom is granted equally to the powerful and the powerless. 
To paraphrase Anatole France, is this just a kind of majestic equality that leaves 
the rich and poor equally free to exploit the potential of biotechnology and soft- 
ware engineering? Will resources determine, ultimately, who is heard in the space 
of "free and open" networks? Can true democratization emerge from spaces of 
creation and meaning making that are not themselves first radically democratized? 

Or is the point of A2K thinkers instead that in the realm of information, we are 
relatively more free and can do more than ever before — if not everything— to recon- 
cile our commitments to freedom, justice, and efficiency? There is a difference, after 
all, in a competition between the subsistence fisherman and the commercial fishing 
fleet and between the unknown garage band and the corporately manufactured pop 
star. There are only so many fish to go around, but there is no limit, theoretically, to 
the number of songs that can be written. As importantly, according to A2K advo- 
cates, garage bands can increasingly compete with studio-driven stars because of 
the power of digital networks to give creators access to a public and the power of 
these same networks to lower dramatically the costs of production of informational 
goods. In the information realm, in a sense, there are always more fish, because the 
fish there are subject to the rules of immaterial, rather than material goods. And 
the advent of ubiquitous digital networks means a less unequal competition in the 
struggle to create new information and to gain access to new publics. 



A CONCEPTUAL GENEALOGY 43 



The claim that the A2K movement can move beyond the traditional ideologi- 
cal battles between formal and substantive conceptions of freedom, between the 
freedom of the market and freedom from the market, is thus intimately bound up 
with the idea that we can move beyond scarcity in the information age. As Verzola 
puts it, material abundance is limited because "it must eventually express itself in 
terms of biomass," but information abundance "is of the nonmaterial variety. Thus, 
information goods offer the promise of practically unlimited abundance." 103 

In what sense is it useful to conceptualize information as having a kind of 
abundance that exceeds the material or that is "practically unlimited"? Verzola 
allows that the realm of information is in fact constrained, in his view "mainly by 
the limits of human creativity, the storage capacity of media, and the availability 
of electricity to power servers on the Internet twenty-four hours a day." 104 But 
there is a Utopian strand in A2K thinking that tends to minimize such constraints 
of mind and environment, suggesting that they need not stand in the way of our 
ability to think and compute our way to a more just and equal world. 

The most enthusiastic proponents of the biotech and open-source software 
revolutions imagine an era when biology and informatics merge to move us beyond 
the limits of the physical. But today, half a million women each year still die in 
childbirth, almost all in developing countries and more than fifty years after the 
technologies to avert almost all such deaths were developed. 105 We already have 
the technologies and resources to feed and care for many more people than we 
currently do, suggesting that there is a primary and prominent set of problems that 
are not technological, but political. 106 The dynamics of networked informationalism 
might help overcome political problems where those problems are rooted in strug- 
gles over scarce resources. They could also facilitate more transparency and politi- 
cal participation, addressing failures of political accountability more directly. 107 

But critical to the postscarcity aspirations of the A2K movement are ques- 
tions of degree, distribution, and velocity: Will the informational component of 
our world advance rapidly or evenly enough to overwhelm the persistent inequali- 
ties in the material? Will such advances be distributed evenly enough to make the 
promise of living beyond scarcity a reality for any but the world's richest? Can we 
expect a leveling of the pervasive material inequalities in the world if the poor lack 
access to the labs, computers, and textbooks that would allow them to do more for 
themselves and if they also lack access to the kind of political power and voice that 
would allow them to change the terms on which resources and informational goods 
are currently distributed? Can A2K advocates build a theory of freedom that is 
based upon the radical political possibilities of the immaterial while also account- 
ing for the crucial moment when the informational intersects with the material in 
the places that we create and communicate, that we live and die? 



44 KAPCZYNSKI 



CAN A2K CREATE A POLITICS OF KNOWLEDGE? WHAT ARE THE PROPER LIMITS 
OF THE POLITICS OF A2K? 

The A2K movement was deliberately structured around a demand for access to 
"knowledge." And yet this introduction and the pages that follow make it clear 
that A2K actors operate routinely in the idiom of "information," for example, 
extolling the importance of the information commons or the lessons of informa- 
tion economics. What difference might this difference make? There are at least 
two ways to approach the question — by asking what A2K activists invest in their 
own choice of terms and by investigating the etymological implications of the dis- 
tinction between information and knowledge. 

If A2K theorists talk often about information, why isn't the A2K movement 
instead the A2I movement — a mobilization for "access to information"? Ahmed 
Abdel Latif, in his account of how the term "A2K" was chosen, explains that "at 
the conceptual level, knowledge, rather than information, is at the heart of the 
empowerment of individuals and societies. While information is certainly a pre- 
requisite in the generation of knowledge, acquisition of knowledge remains the 
ultimate goal. Knowledge processes information to produce ideas, analysis, and 
skills that ideally should contribute to human progress and civilization." 108 

The decision to articulate the movement's demands in relation to knowledge 
was in part a response to perceived conceptual differences between knowledge 
and information. Knowledge is a capacity that is central to empowerment — one 
that relies upon, but is not reducible to information. 

How precisely, though, should we understand the difference between knowl- 
edge and information? A2K theorists such as Benkler define the distinction in this 
way: Information is "raw data, scientific reports of the output of scientific discov- 
ery, news, and factual reports," while knowledge is "the set of cultural practices and 
capacities necessary for processing the information into either new statements into 
the information exchange, or more important in our context, for practical use of 
the information in appropriate ways to produce more desirable actions or outcomes 
from action." 109 Thus, information is objective and external, while knowledge is the 
capacity to use information to create new information or to use information to gen- 
erate technical effects in the world (knowledge as "know-how"). 

This is narrower than the definition of knowledge that we might derive from 
etymology or contemporary usage. According to the dictionary, we can "know" 
anything that we understand through "experience or association." 110 The English 
word "knowledge" corresponds to the German kennen and French connaitre, desig- 
nating a kind of understanding that comes from the senses. But "knowledge" also 
incorporates the concepts of wissen and savoir, designating a kind of understand- 
ing that is derived from the mind. It thus designates basic acts of human cognition: 



A CONCEPTUAL GENEALOGY 45 



recognition, acquaintance, intimacy, consciousness, or, "the fact, state, or condi- 
tion of understanding." 111 

In its broadest sense, then, knowledge is more than the ability to process infor- 
mation into more information and more know-how. As Jean-Francois Lyotard 
writes, knowledge is 

a competence that goes beyond the simple determination and application of the cri- 
terion of truth, extending to the determination and application of criteria of effi- 
ciency (technical qualification), of justice and/or happiness (ethical wisdom), of 
the beauty of a sound or color (auditory or visual sensibility), etc. Understood in 
this way, knowledge is what makes someone capable of forming "good" denotative 
utterances, but also "good" prescriptive and "good" evaluative utterances. ... It is 
not a competence relative to a particular class of statements (for example, cognitive 
ones) to the exclusion of all others. 112 

Knowledge is here a capacity more than it is an object or a possession— a power 
immanent to intellectual, social, cultural, and technological relations between 
humans. 113 Information, in turn, is the externalized object of this capacity, the part of 
knowledge that can be systematized and communicated or transmitted to others. 114 

What would it mean for the A2K movement to take the distinction between 
knowledge and information seriously and to theorize itself as a movement for 
access not just to information, but to knowledge? At a minimum, using the nar- 
rower definition of knowledge proposed by Benkler, it would require a focus not 
only on extending access to information, but also on extending individual capaci- 
ties to produce information and to make use of information to produce practical 
effects in the material world. 

As Benkler points out, there is "a genuine limit on the capacity of the net- 
worked information economy to improve access to knowledge." Knowledge can- 
not be fully externalized into information— it is a capacity, rather than an object. 
As such, it does not partake of the same dynamics of plenty that is said to char- 
acterize the informational domain. While better access to learning materials can 
enhance education, learning by doing requires local practice, and the practice of 
education generally "does not scale across participants, time, and distance." 115 

The A2K movement might focus on forms of information regulation that affect 
the development of knowledge, as it has done to date in work on access to learn- 
ing materials, open courseware, and lowering intellectual property barriers to 
distance learning. These moves are more efforts to increase access to information 
than access to knowledge. If the A2K movement is to embrace its initial identifi- 
cation with the concept of access to knowledge, it must recognize that while access 
to some information is clearly a prerequisite of building knowledge in Benkler's 



46 KAPCZYNSKI 



sense, more ubiquitous access to information is not the same thing as more ubiqui- 
tous access to knowledge. 

Can the A2K movement — as invested as its logic has become in the model 
of information technologies and the economics of the copy — build a politics of 
knowledge as a competence? The dream of perfect (and zero-cost) transmissibility 
cannot survive an encounter with this concept of knowledge, because a compe- 
tence that cannot be fully externalized and traded, and thus that is embedded in 
the material, cannot be nonrival. And if knowledge cannot be accessed through a 
simple download, then a politics of A2K must reach far beyond a politics of enclo- 
sure and intellectual property. 

Does this mean broadening the A2K mandate to include work on, for example, 
the financing of primary schools or the effects of austerity budgets on universities 
around the world? That is one possible outcome. More modestly, it might instead 
mean that A2K groups recognize their focus is on improving access to information, 
acknowledge that knowledge is not an object that can simply be downloaded from 
North to South, and engage openly with those who worry that more information 
could in some cases not improve, but rather threaten access to knowledge. 

What if the A2K movement were instead to embrace the definition of knowl- 
edge that corresponds not just to technical or intellectual knowledge, but also, 
for example, to artistic or ethical knowledge? This would fit well with its attempt 
to embrace the literary arts, as well as science and technology, but it would also 
unmoor the movement from the conception of knowledge present in Benkler's 
definition. Lyotard's broader definition requires us to recognize that the criteria for 
successful knowledge are created, rather than given. 

For the A2K movement, such a recognition would imply the need for a politics 
not just of access to knowledge, but of what counts as knowledge and of who gets 
to decide what counts. Would this work a fundamental harm to the universalizing 
aspirations of the A2K movement? Or would it instead make room for A2K advo- 
cates to begin to reckon with existing tensions in the movement, for example, sur- 
rounding issues of traditional knowledge and the concept of the commons versus 
the public domain? 

CONCLUSION 

A critical genealogy of the concept of access to knowledge allows us to map 
the sometimes contradictory and often complex interventions that are com- 
ing to constitute A2K's theoretical commitments. The first and foremost effect 
of these interventions is to destabilize the dominant legitimation narrative 
of intellectual property today, the despotic dominion account that treats the 



A CONCEPTUAL GENEALOGY 47 



privatization of information as the necessary condition for its efficient production 
and exploitation. 

But the images and values that this new lexicon draws upon should also be 
examined critically as a place to think about the dilemmas that the A2K movement 
faces as it seeks to consolidate its critiques of intellectual property and constitute 
an affirmative vision of its aims. That is the purpose of the questions raised above: 
What does A2K mean by "freedom"? How can it mediate between its commit- 
ments to the public domain and to the commons? Is information different enough 
to justify the postpolitical and postscarcity elements of A2K thought? And is A2K 
a movement about knowledge, or about information? 

These questions are offered in the spirit of committed criticism: What are those 
of us engaged in A2K building? Can it be what we claim for it in our most righ- 
teous and universalizing moments? Who, ultimately, will decide? What might it 
mean for us to win what we seek, and how might some of the paths that we have 
chosen lead us further away from or closer to realizing that aim? My aim here is to 
articulate these questions. If they are to be resolved, it will be through the itera- 
tive and networked process of debate and action that constitutes the A2K move- 
ment itself, to which the volume that follows aims to contribute. 



NOTES 

The author is grateful to Talha Syed, Cori Hayden, Pam Samuelson, and Molly Van Houweling 
for their insightful comments. 

Wikipedia, s.v. "Intellectual Property": http://en.wikipedia.org/wiki/Intellectual_property 
(last accessed February 24, 2010). You can get a sense of the debate by reading the archived 
"talk" pages, where editors argue about the problems with the definition. See http:// 
en. wikipedia. org/wiki/Talk:Intellectual_property (last accessed February 24, 2010). 
The Stallman essay is available at www.gnu.org/philosophy/not-ipr.html (last accessed Feb- 
ruary 1, 2010). Google's algorithm (itself subject to intellectual property protection) answers 
search queries recursively, using the link structure of the Web to rate the relevance and pop- 
ularity of a particular Web site. 

See Gaelle Krikorian, "Access to Knowledge as a Field of Activism" in this volume and Amy 
Kapczynski, "The Access to Knowledge Mobilization and the New Politics of Intellectual 
Property," Yale Law Journal 117 no. 5 (March 2008), available on-line at http://papers.ssrn. 
com/sol3/papers.cfm?abstract_id=1323525. 

F. M. Scherer, New Perspectives on Economic Growth and Technological Innovation (Washing- 
ton, D.C.: Brookings Institution Press, 1999), pp. 25-28. 
Ibid., p. 24. 



48 KAPCZYNSKI 



6 Manuel Castells, The Rise of the Network Society, 2nd ed. (Oxford: Blackwell, 2000), pp. 169-72. 

7 Fritz Machlup, The Production and Distribution of Knowledge in the United States (Princeton, 
NJ: Princeton University Press, 1962), p. 9. 

8 Daniel Bell, The Coming of Post-Industrial Society (New York: Basic Books, 1973), p. 129. 

9 See James R. Beniger, The Control Revolution: Technological and Economic Origins of the 
Information Society (Cambridge, MA: Harvard University Press, 1986), p. 23, fig. 1.1; Castells, 
The Rise of the Network Society, pp. 212-31. 

10 Castells, The Rise of the Network Society, pp. 225-26. 
n Ibid., pp. 13-21, 30, 17, 31- 

12 Ibid., p. 101. The globalization of informationalism has been spectacularly illustrated by the 
recent global economic crisis. The implosion of one exquisitely informational domain in 
the United States — that of structured finance — cascaded around the world, generating an 
unprecedently rapid contraction in global trade and production. The World Bank estimated 
a global contraction of GNP of 1.7 percent in 2009. World Bank, "Global Economic Prospects 
2009, Forecast Update," (World Bank, March 2009), available on-line at http://siteresources. 
worldbank.org/INTGEP2009/Resources/5530448-i238466339289/GEP-Update-March30.pdf 
(last accessed February 1, 2010), p. 1. The WTO predicts a concomitant contraction of world 
trade by 9 percent, the biggest since World War II. WTO Secretariat, "WTO sees 9% Global 
Trade Decline in 2009 as Recession Strikes," press release, March 23, 2009, available on-line 
at http://www.wto.org/english/news_e/pres09_e/pr554_e.pdf (last accessed February 1, 
2010). This is not to say that all regions have been equally affected by the crisis or that all 
economies are equally dependent upon informationalism — they demonstrably are not. It is 
to say, rather, that distance from the centers of world finance did not insulate even the poor- 
est from the effects of the recent crisis. Its effects, mediated by communication technologies 
and techniques such as just-in-time production, are felt through channels such as decreased 
remittances and increased volatility in commodity markets. The interconnection of markets — 
itself dependent upon (though not determined by) advances in information technology — is 
thus one vector for the globalization of the implications of informationalism. 

13 Castells, The Rise of the Network Society, pp. 108-109. 

14 Ibid., p. 17 n.25, citing Daniel Bell. Information, in turn, is defined as "data that have been 
organized and communicated." Ibid., citing Marc Porat. 

15 Elisabeth L. Eisenstein, The Printing Press as an Agent of Change: Communications and Cul- 
tural Transformations in Early-Modern Europe (Cambridge: Cambridge University Press, 1979). 

16 Digital systems — think here of the binary language of zeros and ones that computers use- 
deploy discrete variables and thus allow information to be transmitted more faithfully. This 
is in contrast to continuous variables, which are used by analog systems. On the impact of 
digitalization, see Beniger, The Control Revolution, pp. 25-26: "Digitalization promises to 
transform currently diverse forms of information into a generalized medium for processing 
and exchange by the social system, much as, centuries ago, the institution of common cur- 
rencies and exchange rates began to transform local markets into a single world economy." 
See also Eben Moglen, "Anarchism Triumphant: Free Software and the Death of Copyright," 
First Monday 4, no. 6 (August 2, 1999), available on-line at http://firstmonday.org/htbin/ 
cgiwrap/bin/ojs/index.php/fm/article/viewArticle/684/594 (last accessed February l, 2010). 
Moglen writes, "the movement from analog to digital is more important for the structure 
of social and legal relations than the more famous if less certain movement from status to 



A CONCEPTUAL GENEALOGY 49 



contract." By the same token, nondigitalizable forms of knowledge are lost. See Jean-Fran- 
cois Lyotard, The Postmodern Condition: A Report on Knowledge, trans. Geoff Bennington and 
Brian Massumi (Minneapolis: University of Minnesota Press, 1984). 

17 Castells, The Rise of the Network Society, p. 185. 

18 World Health Organization, World Health Report 2003: Shaping the Future (Geneva: World 
Health Organization, 2003), p. xii, available on-line at http://www.who.int/whr/2003/en/ 
whr03_en.pdf (last accessed February l, 2010). 

19 World Health Organization, "World Report on Knowledge for Better Health: Strengthening 
Health Systems," (Geneva: World Health Organization, 2004), p. 1, available on-line at http:// 
www.who.int/rpc/meetings/en/world_report_on_knowledge_for_better_health2.pdf (last 
accessed February 1, 2010). 

20 Bell, The Coming of Post-Industrial Society, pp. 15-18. 

21 Ibid., p. 20. 

22 Paul Starr, The Creation of the Media: Political Origins of Modern Communications (New York: 
Basic Books, 2004), pp. 97-98. 

23 See Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New 
York: Vintage Books, 1995); Michel Foucault, The Birth of the Clinic: An Archaeology of Medi- 
cal Perception, trans. A. M. Sheridan Smith (New York: Vintage Books, 1994). 

24 Nikolas Rose and Peter Miller, "Political Power beyond the State: Problematics of Govern- 
ment," British Journal of Sociology 43, no. 2 (June 1992): pp. 173 and 175. See also Max Weber, 
"Characteristics of Bureaucracy," in From Max Weber: Essays in Sociology, ed. and trans. H. H. 
Gerth and C. Wright Mills (New York: Oxford University Press, 1946), pp. 196-244. 

25 Rose and Miller, "Political Power beyond the State," p. 178. 

26 Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Free- 
dom (New Haven, CT: Yale University Press, 2007), pp. 3, 212-72. See also Krikorian, 'Access 
to Knowledge as a Field of Activism," in this volume. 

27 New and more exotic forms of intellectual property rights have also emerged in recent years, 
such as the "geographical indications" that reserve the use of terms such as "Champagne" to 
sparkling wine made in certain geographical regions or the exclusive protections for data- 
bases that have been implemented in Europe. 

28 Copyright terms are required by the TRIPS Agreement to last at least fifty years plus the life 
of the author, but many countries have longer terms. For example, the current term in the 
United States is seventy years plus the life of the author. 

29 Today, trademark owners may take advantage of more expansive and controversial rights in 
countries such as the United States, for example, preventing the "dilution" of the value of a mark, 
even where the use in question would not confuse consumers about the origin of a product. 

30 Stallman, "Did You Say 'Intellectual Property'? It's a Seductive Mirage." 

31 Catherine L. Fisk, "Removing the 'Fuel of Interest' from the 'Fire of Genius': Law and the 
Employee-Inventor, 1830-1930," University of Chicago Law Review 65, no, 4 (Fall 1998); Cath- 
erine L. Fisk, "Authors at Work: The Origins of the Work-for-Hire Doctrine," Yale Journal of 
Law and the Humanities 15, no. l (2003). 

32 Kapczynski, "The Access to Knowledge Mobilization," pp. 821-22. 

33 James Boyle, The Public Domain (New Haven, CT: Yale University Press, 2008), pp. 43-45. 

34 See the discussion below for more on the potentially problematic nature of the metaphor of 
the historical "commons" in land. 



50 KAPCZYNSKI 



35 The TRIPS Agreement is available on-line at http://www.wto.org/english/tratop_e/trips_e/ 
t_agmo_e.htm (last accessed February 3, 2010). 

36 The best descriptions of this process are found in Susan K. Sell, Private Power, Public Law: 
The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 
2003) and Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowl- 
edge Economy? (New York: New Press, 2002). 

37 Peter Drahos, "Global Property Rights in Information: The Story of the TRIPS at the GATT," 
Prometheus 13, no. l (1995): p. 16. 

38 Ibid. See also Gaelle Krikorian, "Interview with Yann Moulier Boutang," in this volume. 

39 Joseph Conrad, Heart of Darkness (London: Penguin 1983), pp. 31-32. 

40 We might add a third image (at the risk of disrupting the metaphor), derived from natural 
rights arguments that creators have an inherent entitlement to control or profit from their 
creations. This argument is less common than the more economically oriented claims, but 
turns up not infrequently in debates over copyrightable works. Again, the justification for 
strong copyright as it appears in these debates suppresses substantial disagreement among 
theorists about the nature and extent of any such natural rights. See, for example, Jeanne 
L. Schroeder, "Unnatural Rights: Hegel and Intellectual Property," University of Miami Law 
Review 60, no. 6 (July 2006); Seana Valentine Shiffrin, "Lockean Arguments for Private Intel- 
lectual Property," in Stephen R. Munzer (ed.), New Essays in the Legal and Political Theory of 
Property (Cambridge: Cambridge University Press, 2001), pp. 138-67; Jeremy Waldron, "From 
Authors to Copiers: Individual Rights and Social Values in Intellectual Property," Chicago- 
Kent Law Review 68 (1993): pp. 842-87 

41 William Blackstone, Commentaries on the Laws of England, Volume 2, ed. Wayne Morrison 
(London: Cavendish, 2001), p. 3. 

42 Contrary to the despotic dominion account, intellectual property rights are bounded in 
numerous ways. For example, they typically expire after a period of time (for example, 
twenty years for a patent), are subject to affirmative rights of users (for example, research 
rights in patent law and fair use rights in copyright), and may be overridden by govern- 
ments in certain circumstances (for example, through the mechanism of compulsory licens- 
ing). Rights to material property are limited by many different doctrines of property law, for 
example, the law of eminent domain (which permits the government to take land for public 
use in exchange for just compensation) and the doctrine of necessity (which permits indi- 
viduals to trespass on the land of another to prevent something such as a threat to life). 

43 The marginal cost of production is the cost required to produce one additional unit of the 
good. For example, the marginal cost of producing the millionth watch for the next customer 
is the cost to a watchmaker of producing one additional watch. The concept of marginal cost 
is important to economists, because competitive-market theory indicates that in a competi- 
tive market, price should equal marginal cost. The watchmaker will make and sell another 
watch if the next customer can pay the marginal cost. 

44 It may cost something to distribute the theory to others (the marginal cost of distribution 
may not be zero), but that is a separate matter. 

45 Intellectual property rights may help solve the dynamic (long-run) problem of provisioning, 
but they do so at this short-run cost— a cost that not all strategies of information production 
generate. 

46 Deadweight loss of this sort can be eliminated with perfect price discrimination, but that 



A CONCEPTUAL GENEALOGY 



is not expected in practice. The price-discrimination solution also generates distributional 
effects, transferring wealth from consumers to producers. 

47 See, for example, Kenneth J. Arrow, "Economic Welfare and the Allocation of Resources for 
Invention," in Universities-National Bureau (ed.), The Rate and Direction of Inventive Activ- 
ity: Economic and Social Factors, National Bureau of Economic Research. Special conference 
series 13 (Princeton, NJ: Princeton University Press, 1962), p. 623, available on-line at http:// 
www.nber.org/chapters/c2i44. pdf?new_window=l (last accessed March 8, 2010). 

48 Harold Demsetz, "Toward a Theory of Property Rights," American Economic Review 57, no. 2 
(May 1967): pp. 347-59. The "tragedy" term comes from Garrett Hardin, "The Tragedy of the 
Commons," Science 162, no. 3859 (December 13, 1968), who famously argued that collective 
ownership of resources under conditions of scarcity would lead to their destruction. 

49 For an early work in this field, see Mancur Olson, The Logic of Collective Action: Public Goods 
and the Theory of Groups (Cambridge, MA: Harvard University Press, 1971). 

50 Pamela Samuelson, "Enriching Discourse on Public Domains," Duke Law Journal 55, no. 4 
(2006): pp. 783 and 786. 

51 Boyle, The Public Domain, p. xiv 

52 Ibid., p. xv 

53 David Lange, "Recognizing the Public Domain," Law and Contemporary Problems 44, no. 
4 (1981): pp. 147 and 150-51. For other important early work on the public domain, see the 
sources cited in Kapczynski, "The Access to Knowledge Mobilization," p. 856 n.232. For a 
detailed discussion of the ways that scholars have used the term "public domain," see Samu- 
elson, "Enriching Discourse on Public Domains." 

54 Boyle, The Public Domain, p. 38. In the first definition, Boyle means to include, for example, 
resources such as language that have never been subject to intellectual property rights, as 
well as works that have fallen out of protection, for example, because the terms expired. In 
the second, he means to include domains of freedom that are preserved with respect to pro- 
tected works, for example, the aspect of a patented invention that may be used because of 
the "experimental use" exception to patent law. 

55 Ibid., p. 41. 

56 Copyrights, that is, expire after a fixed term and are limited by fair use rights that protect 
direct appropriations in certain circumstances, such as for the purpose of parody. 

57 See Jane Austen and Seth Grahame-Smith, Pride and Prejudice and Zombies (Philadelphia: 
Quirk Books, 2009); Michael Weinberg, "What Do Ebooks, Zombies, and Copyright Terms 
Have in Common Besides this Headline?" Public Knowledge, December 14, 2009, available on- 
line at http://www.publicknowledge.org/node/28i5 (last accessed February 5, 2010). 

58 Fair-use and fair-dealing exceptions place limits on this power, but are widely criticized as 
too vague and narrow to provide sufficient protection. 

59 Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down 
Culture and Control Creativity (New York: Penguin, 2004), pp. 8-11; William W. Fisher III, 
Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford, CA: Stanford 
University Press, 2004), pp. 28-31. 

60 The public domain can be seen as a "subsidy" in the sense that works within the pub- 
lic domain are either funded directly by the state (for example, the collection of weather 
data or basic scientific research) or facilitated by the intellectual property rules and other 
rules administered by the state. But the public domain is also unlike a subsidy for the poor, 



52 KAPCZYNSKI 



because it is neither preferentially available to the poor or populated through a process that 
seeks to provide the poor with the informational goods that they particularly need. 

61 Boyle, The Public Domain, p. 39. It is worth noting, however, that there is a genealogical (and 
as far as I know, unnoticed) link between the commons and the public domain. The term 
"public domain," according to the Oxford English Dictionary, was to designate "land belonging 
to the public; common land." One could thus speak in the eighteenth century of "cattle that 
fed on the public domain." Oxford English Dictionary, s.v. "Public Domain," available on-line 
at http://www.oed.com (subscription required). 

62 The commons is "generally used to denote a resource over which some group has access and 
use rights." Boyle, The Public Domain, p. 39. 

63 Ibid., p. 184. 

64 While small open-source projects may be quite informal in their governance, larger projects 
tend to have more elaborate decision-making procedures. Steven Weber, The Success of Open 
Source (Cambridge, MA: Harvard University Press, 2004), p. 64. For example, Linux is gov- 
erned by debates on e-mail lists, procedures for reviewing code, and a "hierarchy of gate- 
keepers" who decide whether a piece of code is included. Ibid., pp. 63-64. Apache is governed 
by "a formal de facto constitution that is built around a committee with explicit voting rules 
for approval of new code." Ibid. 

65 Yochai Benkler, "Coase's Penguin, or, Linux and the Nature of the Firm," Yale Law Journal 112, 
no. 3 (2002), pp. 369-446. See also Steven Weber, The Success of Open Source, p. 62: "The key 
element of the open source process, as an ideal type, is voluntary participation and voluntary 
selection of tasks" (italics omitted). 

66 Free Software Foundation, "The GNU General Public License," available on-line at http:// 
www.gnu.org/copyleft/gpl.html (last accessed February 5, 2010). 

67 The latest version of the GPL, for example, was subject to extensive comment and debate, 
facilitated by the Free Software Foundation among others. See http://gplv3.fsf.0rg (last 
accessed February 5, 2010). 

68 James Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," 
Law and Contemporary Problems 66, nos. 1-2 (Winter-Spring 2003): p. 41. 

69 Carol M. Rose, "The Comedy of the Commons: Commerce, Custom, and Inherently Public 
Property," in Property and Persuasion: Essays on the History, Theory, and Rhetoric of Owner- 
ship (Boulder, CO: Westview Press, 1994). 

70 Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action 
(Cambridge: Cambridge University Press, 1990). 

71 See Roberto Verzola's essay "Undermining Abundance: Counterproductive Uses of Technol- 
ogy and Law in Nature, Agriculture, and the Information Sector" in this volume. 

72 Ibid. Ostrom argued that communities can successfully organize the necessary cooperation 
only under certain conditions, for example, where the community is sufficiently bounded 
and the members sufficiently proximate. The concept of a digital commons challenges some 
of these assumptions and raises important questions about the conditions of successful com- 
mon management in the digital age. 

73 See, respectively Creative Commons, "Creative Commons — Attribution — Share Alike 3.0 
Unported" license, available on-line at http://creativecommons.0rg/licenses/by-sa/3.o (last 
accessed February 7, 2010) and Philippe Aigrain, 'An Uncertain Victory: The 2005 Rejection 
of Software Patents by the European Parliament," Laura DeNardis, "The Global Politics of 



A CONCEPTUAL GENEALOGY 53 



Interoperability," and Manon A. Ress, "Open-Access Publishing: From Principles to Practice," 
in this volume. 

74 See DeNardis, "The Global Politics of Interoperability," and Ress, "Open-Access Publishing." 

75 Benkler, "Coase's Penguin," pp. 371-72. 

76 Boyle, "The Second Enclosure Movement," p. 46. 

77 Moglen, "Anarchism Triumphant." 

78 Boyle, "The Second Enclosure Movement," pp. 51 and 41 n.33. 

79 Danny Yee, "Development, Ethical Trade and Free Software," First Monday 4 (1999), available 
on-lineathttp: //firs tmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article /view Article/ 
709/619 (last accessed February 7, 2010). 

80 Georg C. F. Greve, "Statement by Free Software Foundation Europe (FSFE) at the Inter- 
Sessional, Inter-Governmental Meeting on a Development Agenda for WIPO," (April 2005), 
available on-line at http://fsfe.org/projects/wipo/statement-200504i3.en.html (last 
accessed February 7, 2010). 

81 Linus Torvalds, quoted in Yee, "Development, Ethical Trading and Free Software." 

82 See the remarks by Onno Purbo in "Virtual Roundtable on A2K Politics," in this volume. 

83 See Ahmed Abdel Latif's essay, "The Emergence of the A2K Movement: Reminiscences and 
Reflections of a Developing-Country Delegate," in this volume. 

84 Yochai Benkler, in "The Idea of Access to Knowledge and the Information Commons: Long- 
Term Trends and Basic Elements" in this volume, notes that in the campaign for access to 
medicines, the "language of justice is most easily available and has been dominant." 

85 Thus, the manifesto of the first global march for HIV/AIDS treatment access begins not with 
a discussion of patents or prices, but rather by asserting the "fundamental rights of health- 
care and access to life-sustaining medicines." "Global Manifesto, Treatment for All. . . Now!" 
Durban AIDS Conference Reports (July 2000), available on-line at http://www.actupny.org/ 
reports/durban-access.html (last accessed February 7, 2010). 

86 See the essay by Spring Gombe and James Love, "New Medicines and Vaccines: Access, 
Incentives to Investment, and Freedom to Innovate," in this volume. 

87 To be sure, activists demand free HIV medicines as well as generic HIV medicines, because 
most of the people in the world living with HIV/AIDS cannot pay even the cost of generics. 
But the demand is not that drug companies give the drugs away for free, but that govern- 
ments buy generic medicines for those in need. 

88 Lessig, Free Culture, p. xiv. 

89 Wendy Hui Kyong Chun, Control and Freedom: Power and Paranoia in the Age of Fiber Optics 
(Cambridge, MA: The MIT Press, 2006). 

90 Benkler writes most eloquently of this, aligning the public domain with freedom from "hier- 
archical relations of production" and "tightly scripted possibilities." Benkler, The Wealth of 
Networks, p. 138. 

91 Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," p. 62. 
Lessig also overtly aligns the freedom of "free culture" with "'free markets,' 'free trade,' [and] 
'free enterprise.'" Lessig, Free Culture, p. xiv. 

92 GRAIN, "Freedom from IPR: Towards a Convergence of Movements," editorial, Seedling 
(October 2004), p. 3, available on-line at http://www.gram. org/seedling/?id=30l (last accessed 
February 7, 2010). 

93 See Carlos M. Correa, "Access to Knowledge: The Case of Indigenous and Traditional 



54 KAPCZYNSKI 



Knowledge" and Jeffrey Atteberry, "Information/Knowledge in the Global Society of Con- 
trol: A2K Theory and the Postcolonial Commons" in this volume. 

94 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: 
Penguin Press, 2008). 

95 United Nations, The Millennium Development Goals Report 2009 (New York, 2009), p. 52, 
available on-line at http://www.un.org/millenniumgoals/pdf/MDG_Report_2009_ENG.pdf 
(last accessed February 7, 2010). 

96 For the first position, see, for example, Lessig, Free Culture, p. 123; Benkler, The Wealth of 
Networks, pp. 139-40 and 240; and Benkler, 'The Idea of Access to Knowledge and the Infor- 
mation Commons" in this volume, where he argues that "freedom, justice, and innovation all 
require effective agency not merely formal permission to act." Benkler does briefly address 
the digital divide, but refers to it as a "transitional problem." Benkler, Wealth of Networks, 
pp. 236-37 

97 Collection societies like ASCAP, for example, act as clearinghouses to manage and enforce 
copyright owners' public-performance rights. Collective management here is a strategy to 
extract value from copyrighted works. Such societies typically engage in blanket licensing 
schemes, charging fixed royalties in order to save copyright holders the cost of enforcement. 
For a discussion of the operation and implications of collective rights management organiza- 
tions, see Robert P. Merges, "Contracting into Liability Rules: Intellectual Property Rights 
and Collective Rights Organizations," California Law Review 84, no. 5 (1996): pp. 1293-1385. 

98 See H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). In the commons, the 
recognition rule would be the rule that determines the validity of governing norms. 

99 On the former, see Gabriella Coleman, "The Political Agnosticism of Free and Open Source 
Software and the Inadvertent Politics of Contrast," Anthropological Quarterly 77, no. 3 (2004): 
pp. 507-19. 

100 Benkler, "The Idea of Access to Knowledge and the Information Commons." Boyle adopts the 
same spirit when he calls the politics of open source a "curious mix of Kropotkin and Adam 
Smith." Boyle, "The Second Enclosure Movement," p. 46. 

101 Roberto Unger, What Should the Left Propose? (London: Verso, 2005). 

102 Benkler, "The Idea of Access to Knowledge and the Information Commons." 

103 Verzola, "Undermining Abundance: Counterproductive Uses of Technology and Law in 
Nature, Agriculture, and the Information Sector." 

104 Ibid. 

105 Lynn P. Freedman et al., "Who's Got the Power: Transforming Health Systems for Women and 
Children, Summary Version," United Nations Millennium Project, 2005, pp. 1-2, available on- 
line at http://www.unmillenniumproject.0rg/documents/TF4Childandmaternalhealth.pdf 
(last accessed February 7, 2010). 

106 On the political nature of famines, see, for example, Amartya Sen, Poverty and Famines: An 
Essay on Entitlement and Deprivation (Oxford: Clarendon Press, 1982) and Alex de Waal, Fam- 
ine Crimes: Politics and the Disaster Relief Industry in Africa (London: African Rights and the 
International African Institute, 1997). 

107 Benkler, in particular, contends that the networked information economy can facilitate 
greater political freedom. See The Wealth of Networks, pp. 176-272. 

108 Latif, "The Emergence of the A2K Movement: Reminiscences and Reflections of a Developing- 
Country Delegate." 



A CONCEPTUAL GENEALOGY 55 



log Benkler, The Wealth of Networks, p. 313. 

no Merriam -Webster Online Dictionary (2009), s.v. "Knowledge," http://www.merriam-webster. 

com/dictionary/knowledge (last accessed February 7, 2010), defining knowledge as gained 

"experience or association." 

111 Oxford English Dictionary (2009), s.v. "Knowledge," available on-line at http://www.oed.com 
(subscription required). 

112 Lyotard, The Postmodern Condition, p. 18. 

113 This definition of knowledge differs substantially from the one offered by theorists such as 
Castells, who mean by it a "set of organized statements of fact." Castells, The Rise of the Net- 
work Society, p. 17 n.25. 

114 Ibid., defining information as "data that have been organized and communicated." 

115 Benkler, The Wealth of Networks, pp. 314-15. 



56 KAPCZYNSKI 



Access to Knowledge as a Field of Activism 



Caelle Krikorian 



Mobilizations around issues involving access to knowledge (A2K) can be seen as 
a phenomenon highly symptomatic of political as well as technological changes in 
our society. The neoliberal revolution, beginning at the end of the 1970s, 1 and the 
emergence of digital media and the Internet, a central phenomenon of the past 
two decades, are prime examples of such shifts. Both have played a role in the 
contemporary trend toward the development of new and/or increasingly exclusive 
intellectual property rights. Since the late 1990s, this evolution triggered the mobi- 
lization of groups and individuals around the world that are now brought together 
under the banner of A2K— or are perceived as belonging to a general movement. 

This book aims at investigating the forms that this phenomenon is taking, as 
well as the changes it calls for and the transformations that it might effect in our 
society. In this introduction, I intend to discuss the technical and political settings 
that have provoked or sustained the existence of this movement and to explore 
some of the social tensions involved. The A2K movement raises fundamental ques- 
tions about the conception and production of ideas, goods, and services created in 
the current knowledge-based economy and about access to such ideas, goods, and 
services. In doing so, and in order to be in a position to challenge effectively the 
prevailing practices in these areas, it also questions more broadly the representa- 
tions and actions that legitimize, organize, and ensure the functioning and sustain- 
ability of the existing system based on intellectual property rights. It discusses 
the place and role of the various actors involved in this system (the state, the 
corporations, the individual, the market), as well as the relations and interactions 
between them. 

As the A2K movement structures itself, it develops and offers its own readings 
of the world — readings that invite us to explore new possibilities in apprehending 
and organizing our societies — and as such could gain from the spirit of the gleaner 



57 



and from Michel de Certeau's insight that "everyday life invents itself by poaching 
in countless ways on the property of others." 2 



THE DIGITAL ERA AND IMMATERIAL WALLS 

Intellectual property rights protection is the main framework for the control and 
regulation of the production and of the use of knowledge and information. Stan- 
dards of protection of intellectual property rights are established and governed in 
various ways: in national laws and regulations, but also via international agree- 
ments, including multilateral ones such as the TRIPS (Trade-Related Aspects of 
Intellectual Property Rights) Agreement of the World Trade Organization (WTO), 
in numerous treaties of the World Intellectual Property Organization (WIPO) and 
the World Customs Organization, and finally by bilateral or regional agreements, 
treaties, or conventions. Over the years, the variety of institutions establishing 
the norms, rules, and procedures involved in the governing of intellectual property 
rights has stretched and expanded, thereby implicating an increasing number of 
actors and an increasing variety of aspects of social life. These developments have 
built on the evolution of the conception of what intellectual property rights are 
and what precisely can be subjected to intellectual property laws. Thus, the inven- 
tion of new means of creating exclusive rights has grown all the more important in 
recent decades. 

Though the ways in which intellectual property rights protections have been 
extended may sometimes seem minor— a few words added in a law, a few concepts 
reinterpreted, a chapter concerning intellectual property rights added to a free- 
trade agreement — their effects are often significant. The way intellectual property 
rights are handled also reflects changes in the strategies employed by intellectual 
property owners in the face of technological as well as political developments. 
They successfully have changed the goals of intellectual property law, goals rang- 
ing from authorizing private property while limiting access to materials held in 
common to prioritizing property and its defense. 3 Rather than creating physical 
walls to protect material property, they have sought to create immaterial legal walls 
to enclose information and knowledge, the immaterial property of the digital age. 

Information and knowledge are the raw material of which immaterial goods, 
ideas, and inventions are made, and as such, they are key to individual as well 
as collective human development and welfare. 4 On the scale of the global econ- 
omy, what is at stake in exclusive intellectual property regimes is nothing less 
than the control of existing stocks of information and knowledge and of their 
flows, along with the management and harnessing of the innovations that such 
information and knowledge can allow to produce. As in the current international 



58 KRIKORIAN 



economy growth and competitiveness have become increasingly dependent on the 
production, processing, and circulation of information and knowledge, the empire 
of intellectual property rights was expanded. The ramifications of the intellectual 
property system thus extend to techniques, technologies, know-how, and skills 
in all sectors, whether they concern financial speculation, aerospace engineer- 
ing, medical or military research, agronomics, textiles, shipbuilding, cooking, or 
music composition. 

The Internet and the digital era have changed the relationship of users of tech- 
nologies to production and creation, opening up new possibilities that quickly 
have translated into the emergence of new practices. On the individual level, this 
new technological context has contributed to the blurring of the line between 
consumers and creators and to the characteristic status usually allocated to each, 
such as passivity versus productivity, inertia versus efficiency. New technologies 
and new formats (VCRs, VHS, CDs, DVDs, and so on) have made it possible for 
anybody equipped with the proper equipment — and in the capitalist economy 
of wealthy countries, access to such equipment has been rapidly democratized — 
to copy, adapt, mix, or perform sounds, images, or motion pictures. Because the 
Internet facilitates large-scale and nearly instant exchanges — features that many 
would recognize as being specific to contemporary "globalization" — creation by 
means of these technologies is characterized by the marginal costs of production 
and the high speed and low geographical concentration of distribution. The ways 
in which one creates have not fundamentally changed. Creation has always been 
inspired and made possible by what already exists, and it continues to be, but the 
space and time in which the act of creating can be performed by ordinary people 
has been significantly transformed with the unfolding of an immaterial world in 
which new possibilities of creation have become increasingly accessible to many. 

As Lawrence Lessig has pointed out, these technological changes have intro- 
duced the "potential to expand the reach of this creativity to an extraordinary 
range of culture and commerce." 5 First, new types of goods and products enriching 
the economy of the immaterial keep emerging, and their importance keep grow- 
ing. 6 Second, changes in production due to the fact that digital technologies "cre- 
ate and replicate reality much more efficiently than non-digital technology does" 
have affected not only what people can do at their own, individual level, in their 
private spheres, but also at the level of the economy itself. 7 For instance, what 
inspires and provides incentives for economic actors tends to change. Because 
innovations and goods are easier to copy and more difficult to protect, providing 
services often becomes more economically rewarding than selling physical prod- 
ucts. The economy of immaterial goods develops according to specific ways and 
via specific means that in return bear the potential to transform the functioning of 



A FIELD OF ACTIVISM 59 



the economy as a whole. As Yann Moulier Boutang explains in an interview in this 
volume, digital technologies, owing to their dramatically reduced production and 
distribution costs, offer opportunities to revise the sharing of those costs in many 
different sectors. 8 In the book-publishing industry, for instance, such changes 
could benefit the creator's ability to work by allowing us to revise the way in which 
they are paid and thus improve greatly a manner of compensation that is largely 
inadequate for many of them in the current intellectual property system. Creators 
in general can also benefit from easier access to the works of others that facilitates 
potentially new forms of work and cooperation that favor research and creativity. 
Entire industries and economic activities, not only those specialized in immaterial 
goods, changed with the integration of digital tools and began to transform even 
more substantially with the move toward the concept of open innovation and net- 
work-based peer production. 9 Some companies have invited consumers into the 
innovation process — in some cases even through challenges directly posted on the 
Internet to encourage people to come up with new ideas and to share them. 10 They 
have used consumers as a source of inspiration for new products or designs that 
could attract and interest new customers and create new markets. In recent years, 
groups such as IBM, Proctor and Gamble, Lego, and Unilever have adopted such 
strategies to develop new products. These new ways of doing business have called 
for important transformations in traditional business models, company cultures, 
and management strategies. For instance, innovative strategies may shift the 
focus of many companies from keeping formulas, recipes, or components secret 
to extracting the value of ideas, increasing the speed at which products can be 
brought to market, reducing the cost of research and development, and improving 
the fit between their products and consumers' desires or modes of consumption. 11 

However, despite the real or potential changes that information technologies 
have introduced and the substantial new prospects they have opened up in the 
economy, widespread transformations of corporate practices still remain rare. 
Even companies that have incorporated a certain amount of open innovation have 
mostly remained intent on maintaining control of ideas as soon as they are gener- 
ated. New modes of creation and consumption have emerged, but the immaterial 
has become essentially and only a new field in which capitalist logic can operate, 
and the principles on which capitalism is based have remained unchanged. 

However, insofar as the interaction allowed by digital technologies offers 
opportunities for intense exchanges and production, as well as for new ways of 
commodifying goods and services, the transformation of the knowledge economy 
has certainly affected capitalist ways of functioning. Industrial capitalism now 
coexists with a new form of capitalism, called by some "cognitive capitalism," or 
"knowledge capitalism," that is both a new type of accumulation (of intellectual 



60 KRIKORIAN 



capital) and a new mode of capitalist production. 12 It corresponds to the develop- 
ment of an economy based on the distribution of knowledge goods in which the 
production of knowledge is the central element in the valorization of capital. 13 

Changes in the means by which capital is produced and accumulated have 
brought about changes in the position that social groups occupy in relation to the 
rules of production. In knowledge capitalism, the laboring class no longer holds a 
central role, and capital is produced mainly by a new class composed of techno- 
crats and people working predominantly for the service sector. This development 
contributes to the disruption of the preexisting social order as new tensions and 
power relations between social groups began to arise. With knowledge capital- 
ism comes a reconfiguration of class interests and of the relations between classes 
and thus a reconfiguration of what defines them. As we will discuss later, in this 
context and under the rules of intellectual property protection that regulate the 
production as well as the use of goods, it is the issue of access that draws new 
dividing lines between people and groups, dividing lines that are superimposed on 
former divisions. 

Some people have the means to exist and to thrive in the digital world, while 
others do not. What is necessary for participation in the immaterial world is not 
only a computer, the right software, and an Internet connection, which already 
excludes a large portion of the world population, but also the codes and filters 
normally acquired through education. These are indispensable for navigating this 
environment, because only they enable participants to locate and to make use of 
the resources available in ever-expanding proliferation and to take an active role in 
the production thereof. 14 But the education necessary for the acquisition of such 
codes and filters remains a near monopoly of the privileged classes. At the same 
time, with the unfolding of the knowledge-based economy, the strengthening of 
intellectual property protections, and the central place that the market occupies in 
the neoliberal context, potential inequalities in access increase: Knowledge appro- 
priation plays an increasingly important role in the economy and in peoples' lives 
in general, but is also more than ever subject to market rules. Individuals with no 
economic and/or cultural capital generally cannot compete on an equal footing 
with others, and their access to knowledge is easily compromised. Thus, inequali- 
ties in access to knowledge reinforce and perpetuate social and class inequalities, 
while the current knowledge economy and the intellectual property regime over- 
lay an old class structure with new tensions. 

As in every capitalist model, in knowledge capitalism, the issue of the transfer 
of property is a key issue. One of the most salient characteristics of knowledge 
goods is their electronic transferability. Consequently, in the field of knowledge 
capitalism, to ensure ownership and control of knowledge goods and thus 



A FIELD OF ACTIVISM 



benefit from the profit derived from their production and subsequent commercial 
exchange, one must find ways to prevent or slow down a transmission made so 
simple and easy by digital networks. 15 

This is where intellectual property rights come into play. One might think that 
it is the same old game, appropriating the means of production, only taking place 
in a new environment. And to some extent, it is. Some argue that this is one of the 
problems with the term "intellectual property;" that is, the fact that it determines 
the granting of legal rights through the establishment of property, what James 
Boyle describes as the "second enclosure movement." 16 Historically, at the time 
of the first property enclosures, land ownership was at stake. To enforce it, apart 
from the use of legal acts, walls and barriers were used to delineate the property. 
In the knowledge-based economy, intellectual property rights holders, through 
their efforts to establish property rights over knowledge, are building other kinds 
of walls to channel access and to regulate who can benefit from what is produced 
in the immaterial realm. Though not as visibly obvious as physical walls erected 
throughout the world, in the era of globalization, they are just as determinative in 
the establishment of national and international social orders. 17 

This enclosure effort is all the more evident as enforcement and repression 
become increasingly important pieces of the intellectual property right owners' 
agendas. The purpose of intellectual property walls is not to demarcate space, to 
differentiate an inside and an outside, each having different characteristics and 
status, but they are far from serving a merely symbolic function. When, for exam- 
ple, the Chinese government sends tapes showing police raids and the destruc- 
tion of unauthorized copies of DVDs to the U.S. trade representative, this theat- 
ricalization of police efforts is both a performative action intended to prove the 
goodwill of the Chinese government to its U.S. counterpart and a publicly dem- 
onstrated materialization of the existence of intellectual property rights and of 
the consequences that the act of trespassing in the immaterial world can generate. 
Such performances — from raids in Moroccan souks to the arrest of teenagers and 
other Internet users in Hong Kong, France, the United Kingdom, and the United 
States — are becoming more numerous and increasingly visible in public space. 18 

However intellectual property walls do not always efficiently prevent access. 
If people are determined to find breaches, they often can. But in doing so, they 
will knowingly commit an illegal act and thereby run the risk of sanctions. In our 
societies, most of those who commit an illegal act to access a territory or a good 
are those who do not have the means to play by the rules or those who consider 
they have little to lose in comparison with what they hope to gain. Those with 
the resources and capital, on the other hand, are rarely refused access to a terri- 
tory or a good. As a result, walls work not so much as real barriers, but as socially 



62 KRIKORIAN 



polarized filters. They selectively hinder certain people and filter societies as they 
regulate access to information and knowledge — a mechanism that inevitably 
makes the issue of access political. 

The second most salient characteristic of knowledge goods is what economists 
call their "nonrival" and "nonexcludable" nature. Nonrival goods are goods whose 
consumption by one person does not prevent its consumption by another. This 
book is a nonrival good: After you have read it, another still can. On-line, even 
while you read it, another can. Nonexcludable goods are goods whose consump- 
tion can't be prevented once they have become publicly available. Architecture, 
such as the Cathedral of Notre Dame, is a nonexcludable good: Anybody who can 
appreciate it can do so for free. Because these goods can be used by multiple indi- 
viduals simultaneously, it is harder, sometimes impossible, to expropriate them. 
Both attributes operate as constraints on capitalist exchanges and make rights 
holders fearful that the technology of digital copying will render their legal rights 
and sources of profit ineffective. The advent of digital technologies and the popu- 
larization of the Internet brought the prospect of huge financial benefits, but at 
the same time, uncontrolled consumption and production, which is materially lim- 
ited in the physical world, also took on new proportions, given that the spaces in 
which these take place are numerous and ubiquitous and that the cost of enforce- 
ment is high. Who or what entity could indeed possibly observe everything tak- 
ing place in every potential offender's living room or bedroom or monitor every 
Saturday-night party in every small town in every country? 19 

Consequently, a race began between the "cops and the robbers." As Yann Moulier 
Boutang describes it, "the cops never get a head start. There is a delay, and their 
route is full of pitfalls." 20 The enforcers have acquired new ways to locate the infring- 
ers, but the technical possibilities have intensified their interactions and exchanges. 
What makes the Internet a public space — a space that if not all individuals, at least 
many can access and inhabit and where freedom can appear— also makes it a space 
difficult to control. 21 But along with the freedom that the Internet provides to users, 
it also gave rights holders a cheaper way to watch individual activities on a global 
scale and to monitor and locate infringements, if not when people are enjoying the 
use of illegally acquired material, then when they are merely acquiring it. As such, 
as Cory Doctorow notes, the Internet and the personal computer represent "a perfect 
storm for bringing ordinary peoples' ordinary activity into the realm of copyright." 22 
If activities that infringe intellectual property rights cannot be eradicated, they can 
be criminalized. And if the act in itself cannot be prevented, social condemnation 
can affect people's behavior, repression leading to suppression. 

One consequence of such condemnations is to marginalize appropriative 
and sharing practices and to make them disappear from public spaces. As Lessig 



A FIELD OF ACTIVISM 63 



observes, if "we can't stop our kids from using these tools to create, or make 
them passive," we can "drive it underground, or make them 'pirates.'" Examining 
developments in the field of copyright, he adds: "We are in the middle of. . .what 
some call 'the copyright wars.'" 23 If there is war over copyrights, we should ask 
ourselves who the fighting camps are. On one side stand the owners of intellec- 
tual property rights. They are rather easy to identify: They sponsor laws in public 
forums and pay for advertisements on TV; they promote a moral position as well 
as an understanding of economics for the public to adopt; they argue that their 
camp is the righteous side of the debate, the side of struggling artists who need 
to be protected from dishonest plagiarists, of quality magazines endangered by 
blogs and free publications. Who are their enemies? Many different profiles fit 
into this category, including kids "stealing" songs or movies with their computers, 
unknown artists copying and transforming very well-known ones, and individuals 
using peer-to-peer platforms to share files and software. 

A wide range of individuals thus started to be targeted as "pirates" for the 
improper use, sharing, and production of materials using copyrighted matter, and 
the more copyrights expand, the more favorable are the conditions of the produc- 
tion of "pirates." They easily fit into a political environment that is predominant 
in many Western countries in which security and repression had become routine. 
Increasingly, public, social, and legal resources have been encouraged to be or actu- 
ally have been mobilized in an effort to enforce intellectual property protections 
and to limit exchanges of protected material, resources that often seem particularly 
unreasonable to deploy in many developing countries when one compares them 
with the national budget of such countries and when one considers essential, but 
unmet local needs. Meanwhile, the motors of innovation and creativity are jeopar- 
dized by an ever more restrictive judicial and legal environment — despite the fact 
that this, by definition, is contradictory to capitalist interests, which rest on the 
continuous delivery and marketing of new products to generate accumulation. 24 

Various tensions and conflicts about the effects of and the justifications for 
intellectual property rights have emerged and crystallized in the past decade. They 
have taken the form of negotiations and contentious relations between states 
within international organizations such WIPO, the WTO, the World Health Orga- 
nization (WHO), and UNESCO, the UN Educational, Scientific and Cultural Orga- 
nization. They emerged noticeably in an election context recently with the consti- 
tution and election to the European Parliament of a Swedish pirate party. 25 They 
have resulted in lawsuits brought by people with AIDS against pharmaceutical 
companies or the conviction of farmers who have campaigned against genetically 
modified organisms. And they have inspired demonstrations and lobbying cam- 
paigns for access to medicines, against software patents, against biopiracy, and for 



64 KRIKORIAN 



the mobilization of students, librarians, and researchers. They have provoked the 
organization of university meetings for open sources, for open publishing, and for 
access to knowledge. They have triggered conflicts between major corporations, 
lawsuits between competitors, and debates in many parliaments, senates, and con- 
gresses. Each of these contentions can be seen as expressions and elements of the 
formation of access to knowledge as a field of activism. 

These mobilizations and the common framing of their claims manifest a will- 
ingness to give the issue of access a central position in the contestation of funda- 
mental political and social issues today. As the A2K movement seeks to promote 
the visibility of challenges to access and uses the issue of access to structure its 
discourse, it encompasses social and political contests specific to the inequalities 
created by the rules governing the appropriation of value and property under the 
current regime of neoliberal capitalism. As such, as we will see later, A2K can be 
seen as the development of a response to continued efforts to extend intellec- 
tual property rights, efforts that themselves can be seen as both a political and a 
social mobilization. 



POLITICAL CONTEXT AND POLITICAL PRACTICES: 

FROM INTELLECTUAL PROPERTY TO ACCESS TO KNOWLEDGE 

To understand how the interests of intellectual property rights owners became 
state policy, we need to look more closely at the way those advocating increased 
intellectual property protections have been organized and mobilized, because their 
strategy rests as much on their harnessing of an ideological/political context and 
their manufacturing of conceptual tools as on the details of the ways in which they 
have organized their mobilization. 

The fact that the market is in the foreground of most contemporary political 
theories, or more exactly, that no other views than those putting it in the fore- 
ground could establish themselves successfully in the past forty years, illustrates 
the spread of neoliberal rationality, which "extend[ed] and disseminat[ed] mar- 
ket values to all institutions and social actions" across the globe. Far from being 
only an economic doctrine, this ensemble of political practices and institutions has 
enveloped the state, which has incorporated its economic logic and redefined itself 
according to the search for profitability, progressively linking its legitimacy to its 
capacity to sustain and fuel the market. The market, while remaining a "distinctive 
player," has become the organizational principle that is applied to the state, as well 
as to individuals and society. 26 

Contrary to the assumption that associates neoliberalism with a weak and 
quasi-absent state, in this regime, the state, while it must be kept subject to the 



A FIELD OF ACTIVISM 65 



logic of the market, has a key role to play to guarantee that the market operates 
properly: It needs to provide laws, regulations, and institutions that establish opti- 
mal conditions for its development. 27 Thus, far from being noninterventionist, the 
state actively participates in an array of domains through policy arbitration, dis- 
mantling welfare programs, and deregulating entire sections of socioeconomic life 
while controlling, encouraging, or criminalizing social activities and behaviors. 

In this context, those representing the state and those representing private 
interests have started to act as partners. This rapprochement has been facilitated 
by the phenomenon of the "revolving door," according to which the members of 
the dominant classes, including many who have been advocates for the establish- 
ment of neoliberalism, hold positions, often in tandem or succession, in both pub- 
lic and private institutions. 

The action of advocates for an increase in intellectual property protection bene- 
fited, both literally and symbolically, from neoliberalism's successful establishment 
at the end of the 1970s and 80s as the dominant political system internationally. 
Neoliberal rationality indeed constitutes a favorable environment for strengthen- 
ing intellectual property rights. On the one hand, neoliberalism promotes individ- 
ual entrepreneurship and private property, while on the other, it encourages free 
trade and the multiplication of agreements that have proven to be a key vehicle for 
the expansion of intellectual property restrictions across the world. 

Of course, the maximization of intellectual property rights can also be seen 
as paradoxical, if not contradictory, with regard to the neoliberal doctrines, since 
these, in theory at least, promote competition and do not encourage institutional- 
ized monopolies. But such is the beauty and the efficiency of neoliberal rationality 
that it is malleable enough to allow it to incorporate paradoxes without losing its 
apparent cohesion and strength. Thus, the state, while lauding free-market theory 
and spreading it both in discourses and through international agreements, in effect 
undermines it, allowing monopolies and limiting competition in order to ensure 
and expand the rights of intellectual property owners. 28 

Besides providing intellectual property rights owners with a practical vehicle 
for the realization of their agendas, neoliberalism has also has helped them estab- 
lish their sociocultural position and direct their political actions. Ideologies are a 
powerful instrument in the production of legitimacy, and the laissez-faire ideol- 
ogy of classic economic liberalism has provided neoliberalism with the benefits 
of legitimacy and historical weight. Although those who advocate for increased 
intellectual property restrictions generally publicly condemn what they call "ide- 
ology," which they usually associate with left-leaning political Utopias, Commu- 
nism, socialism and other such "evils," the ideological domination of neoliberal- 
ism that is now (and still) understood as inevitable, having imposed itself with no 



66 KRIKORIAN 



alternative and as having coincided with Francis Fukuyama's "end of history," has 
proven largely instrumental to the successes of the movement to increase intel- 
lectual property protections and the lack of questioning of the vision that it pro- 
motes. At the same time, the contributions of intellectual property advocates to 
the neoliberal revolution through the success with which they have promoted their 
own goals has helped power the rise of this broader political movement. 

But if the strategy of intellectual property rights owners has benefitted from 
their harnessing of an ideological/political context, it also has rested on the way 
they have manufactured conceptual tools and organized their mobilization. At first 
blush, it may seem like a misconception to treat advocacy for intellectual prop- 
erty rights as an organized social movement. After all, those who advocate for 
increased restrictions on intellectual property rights tend to belong to the domi- 
nant class, and what is usually considered as an alliance consisting of a group of 
property owners, a network of industries, or a cartel of multinationals has a priori 
no need for mass mobilization and the confrontational tactics that most organized 
social movements rely on in order to persuade states to act in their interests. 

However, it worth noting that, like other social mobilizations, intellectual prop- 
erty right owners do not employ the traditional political means of representative 
politics to further their agenda. Of course, they soon succeeded in making the 
state a partner in realizing that agenda, rather than a source of opposition to it, 
and while confrontations between intellectual property interests and the state do 
occur, for instance when intellectual property advocates lobby and even threaten 
governments, these confrontations take a very different form from those expected 
from typical social movements. Nevertheless, a number of features central to the 
concept of a contemporary social movement do seem to describe the mobilization 
for increased intellectual property protection. 

A social movement is a product of its time and reflects actions and reactions to 
a particular political and economic condition, or what some social scientists refer 
to as a political opportunity structure. The emergence of the movement in favor of 
increased protection of intellectual property rights, taken as such, offers insights 
into evolution of the information society and into the constraints and opportuni- 
ties that such an evolution has presented to intellectual property owners as the 
basis for their mobilization. 

Strategically, as is the case in numerous social movements, success has rested 
on building a common identity that goes beyond the interests of one group and 
on mobilizing collective action that encompasses a range of tactics that goes well 
beyond merely lobbying those who govern. 29 Using an emphasis on the concept 
of property as the basis of this shared identity, promoters of increased intellec- 
tual property protection successfully incorporated the project of a handful of 



A FIELD OF ACTIVISM 67 



corporate executives into international trade negotiations, U.S. government pol- 
icy, and even international trade rules. 3° An initiative launched by a specific seg- 
ment of society, but couched in terms of social progress (that is, of increased social 
welfare and development) thus successfully achieved changes in basic social and 
political norms. 

The A2K mobilization integrates and responds to the specific ways of doing 
politics that the movement for greater intellectual property protections has used. 
This is undoubtedly inevitable, because A2K advocates are engaged in discuss- 
ing and criticizing the effects of intellectual property rights, and consequently, 
they incorporate the legal language that articulates those rights and engage with 
the institutional frame that produces them. 31 Participants in the A2K movement 
are keen to monitor their counterparts' moves, and they take inspiration from the 
manner in which the movement for intellectual property restrictions has success- 
fully incorporated its agenda into the state's agenda. Consequently, they regu- 
larly employ the technical and legal language of the various institutional contexts 
where they try to counterbalance the effect of their opponents or where they try 
to intervene before their opponents do so, whether at the WHO, WTO, or WIPO, 
during the negotiations of bilateral trade agreements, during negotiations over the 
United Nations Millennium Development Goals, or in negotiations over national 
regulations and laws. Furthermore, A2K advocates of necessity employ the domi- 
nant economic logic when they seek to promote a balance between public and pri- 
vate rights based on criticisms of the way the market functions, for example, or 
when discussing the need for competition, the effect of monopolies, or the exclu- 
sive impact of prices. The two opposing movements can thus be seen as adverse 
forces at one moment in history, which also implies that they to some extent share 
a common culture and experience. 

Both movements likewise participate in and exploit the effects of globaliza- 
tion. Globalization in the neoliberal context both results from and in turn pro- 
vokes transformations of the existing power structure and the practices of power. 
Internalizing the context of globalization, both movements elaborate their actions 
inside and outside national borders. Both contribute to the ways that politicization 
occurs outside the framework of representative politics and to what results from 
it. Both compete to influence the state's performance and what its role should be. 
As much as neoliberalism rests on state intervention and control to strengthen and 
facilitate market logic, claims for an open and protected public domain hold the 
necessity of an active power structure that bears responsibilities for public inter- 
ests and that enforces rules. 32 

All of these factors affect the movement for access to knowledge as a field of 
activism, determining its concrete strategies and tactics. For many A2K advocates, 



68 KRIKORIAN 



opposing intellectual property extremism in public debates and concretely estab- 
lishing optimal conditions for the creation of new things and for socioeconomic 
prosperity requires reviving awareness of the social value of spaces where all peo- 
ple can share and make use of knowledge produced there and of the need to secure 
such spaces. 33 This process involves questioning the arbitration performed by those 
who govern and who mediate between the public and private spheres and between 
public and private interests. Facing the alliance between the state and multinational 
corporations, A2K advocates are confronted with a particular power structure and 
the form of governance established thereby. In this context, the issue to debate is 
not so much the intrinsic capacity of the state to control resources or whether the 
state or the market works better at doing so, largely because these two entities 
are no longer in opposition with one another. Rather, the discussion concerns the 
objectives that the state pursues, its priorities, and the ways it operates within neo- 
liberal rationality, all of which call for A2K advocates to develop a critical under- 
standing of the role of neoliberalism in the development of the global intellectual 
property regime. More broadly, A2K advocates interrogate not only the role and 
place given to the governing powers, but also the role and place given to the indi- 
vidual and the relation between the two of them, as well as the relations between 
individuals themselves. 34 They thus address fundamental and age-old issues 
regarding the governing of societies, as well as current transformations of power 
and the legitimate expectations that individuals can experience as a consequence. 

WHAT IS A2K? 

In 2004, the term "access to knowledge" emerged as a common umbrella under 
which individuals and organizations could denounce inequalities and injustices 
related to intellectual property. But it remains a fair question to ask whether 
this gathering is more than the pooling of problems and demands, more than a 
juxtaposition of identities that have provisionally focused their energies on a 
common hindrance. 

A consideration of the trajectory followed in terms of commitment by the indi- 
viduals who today take part in A2K mobilizations provides a useful understanding 
of the emergence of the phenomenon. Some describe their participation as a logical 
evolution of their involvement in other political issues. Indeed, many A2K advo- 
cates have been or are currently active on other fronts. Analyzing the mechanisms 
at the heart of the problems they focused on is often what led them, at the end of 
the day, to describe those problems in terms of inequalities in access to knowledge, 
giving rise to the recognition of an underlying cause and the formulation of a com- 
mon framework around which others could be rallied. In a typical example of this 



A FIELD OF ACTIVISM 69 



process, one activist may have joined mobilizations to end discrimination against 
HIV-positive people. This initial effort may logically have turned into a campaign 
for access to drugs in developing countries. And such a campaign might, as a mat- 
ter of course, lead him or her to denounce the negative effects of intellectual prop- 
erty protections, which bar access to such medicines. As the activist intensified his 
or her critique of the dampening effect such protections have on the generation of 
medical innovation, key critiques surrounding access-to-knowledge issues would 
begin to be formulated. The activist would soon find that, perhaps even almost 
unwittingly, he or she had joined the A2K mobilization. 

A2K does not look like a mass movement. It does not rely on massive street 
demonstrations as a constitutive means to confront the power structures that it 
challenges. Perhaps a more massive form of mobilization and a more cut-and-dried 
political stand would do a better job of advancing the purposes of A2K. Or perhaps 
the A2K movement could better serve itself by drawing on what it already pos- 
sesses, which is a composite form of mobilization that provides the potential to 
cement together a multitude of actions. 

As in a Venn diagram, movements fit into one another and overlap, each one 
bringing its own obsessions, tactics, networks, and savoir-faire. A2K can be seen 
as a movement of movements, resting on the capacity of its participants to hear 
and share their various messages or, more specifically, the common denominators 
within their messages, without allowing their differences to develop into obstacles. 
The A2K umbrella is large enough to allow for an intense variety of participants, 
issues, and actions, as well as to allow creativity to express itself through vari- 
ous modes without being limited by the hierarchical structures that often hamper 
conventional organizations. This is not unlike the form of political activity wit- 
nessed throughout the course of Barack Obama's presidential campaign: a general 
rhetoric not only coexisted with, but was actually energized and shaped in the 
eyes of the public (or in the eyes of enemies) by a variety of actions from indi- 
viduals and networks stepping forward from multiple places. The very qualities 
that gave this movement its blurry outlines also enhanced its force by enlarging 
its federative power. Within the A2K movement, individuals bring whatever they 
have to the table, be it their handicaps or their positions of privilege, and draw 
upon them as resources for collective action in order to formulate political ques- 
tions. When an HIV-positive person asks for access to life-saving medication or a 
visually impaired person asks for access to educational material, their point cannot 
be easily dismissed publicly or ignored by political leaders. Meanwhile, when an 
academic from a prominent U.S. university presents an analysis of knowledge gaps 
or business models, his opinion is likely to be heeded and to be echoed in political 
spheres and media circles. 



70 KRIKORIAN 



Although each element within the collective may have its priorities or its par- 
ticular raison d'etre, the movement as a whole does not impose a hierarchy of mat- 
ters of concern. It sustains a plurality of claims and actions without undermining 
the particularities or the autonomy of individual groups or national coalitions. A 
campaign for the local production of generic drugs in Brazil or South Korea takes 
place simultaneously alongside a movement at WIPO for access to reading mate- 
rial for visually impaired persons. At the same time, an international mobiliza- 
tion takes place to defend a professor of philosophy taken to court in Argentina 
for putting Spanish translation of texts by Jacques Derrida on the Internet, and a 
backlash is organized against the European Commission for allowing its customs 
arm to block the transit through its harbors of life-saving drugs from India to other 
developing countries. 

At some levels, a dampening out of particularities, singularities, and diverse 
priorities or choices normally occurs in favor of the vision of those within a move- 
ment who enjoy certain advantages, whether by speaking a dominant language, 
having a higher level of education, associating with upper-class social networks, 
or possessing greater financial resources. But although the consequences of 
such power relations are by no means absent within the A2K, so far, this has not 
seemed to affect the apparent cohesion of the movement. 35 

So far, the A2K model of activism allows for such heterogeneity without sac- 
rificing the capacity to function as a common entity advancing a common cause. 
Each protagonist may be focused on one particular issue or may be involved in 
several different fights at the same time. However, as a member of the A2K mobi- 
lization, he or she agrees to represent a collective identity — whether it is in a very 
active or less committed way — thus becoming part of an entity that transcends 
the elements that constitute it, a movement that contributes to the emergence of a 
common imaginary. 

Intellectual property rights affect and encompass a variety of issues that are 
diverse and separate in nature. Paradoxically, the reification of intellectual prop- 
erty rights as one coherent concept that embraces copyrights, patents, and trade- 
marks has enabled the emergence of an extremely diverse A2K front. Opposi- 
tion to institutions with so wide a footprint as the WTO or to policies with such 
far-reaching effects as the TRIPS Agreement or free-trade agreements favors 
the coalescence of groups or movements originally focused on specific and dis- 
crete concerns because such groups oppose entities that structure intercon- 
nections between domains. Each A2K actor not only addresses a specific effect 
of the strengthening of intellectual property rights, but, as a member of a col- 
lective, embraces multiple issues, becoming sensitive to the echo and similarities 
between their causes and taking into consideration the broader logic and structure 



A FIELD OF ACTIVISM 



manifested in the specific legal provisions they oppose. The nature of the enemy 
determines the organization of the resistance mobilized against it, forcing it to 
become more systemic. In order to make the best of collective action, A2K advo- 
cates therefore cannot limit themselves to a juxtaposition of diverse demands or 
criticisms, but must instead develop an integrated common agenda, or at least try 
to do so. If this is not yet where the A2K movement is, it is definitively a trend 
along which it tends to evolve. A2K advocates are pushed to formulate a global 
vision for society, rather than simply denounce legal dispositions or policies, and 
the time frame in which they plan their actions to serve longer-term objectives 
expands accordingly. 

This dynamic usually carries benefits for movements: an increased presence 
in forums and political spaces, the capitalization of resources, networks, and the 
benefits from specific actions, the ability to move back and forth between the 
grassroots and the political spheres, and so on. At the same time, the trend toward 
integration and consolidation can weigh down an organization and raise problems 
within it, disrupting the specific culture of action that characterizes it, potentially 
blurring their initial objectives, and creating internal tensions. Contesting the spe- 
cific effects of the intellectual property system without abandoning larger A2K 
claims in terms of creativity, innovation, and access certainly has the potential to 
take activists further than they first decided to go, to get them involved in politics 
in a more totalizing way than they intended when they first demanded a right or 
denounced what they identified as an injustice. 

By identifying themselves as A2K constituencies, individuals and groups show 
an interest in defining themselves and in being perceived not simply as contradic- 
tors or opponents of the intellectual property system, but as promoters of a posi- 
tive and cohesive agenda — something bigger than mere opposition. 36 Though they 
were originally brought together by objections to a common enemy, 37 a conscious 
strategic move was made by many A2K advocates for the purpose of allowing 
them to reframe the issues outside of the logic of the intellectual property rights 
system. Whether they invoke notions of the public domain or knowledge goods 
and knowledge spaces as commons, A2K actors are trying to formulate a debate 
outside of the dialectic of opposition, in a discursive space in which they can set 
at least part of the terms and in which intellectual property represents only one 
among several options. 38 

Not only does A2K not look like a mass movement, but many of its advocates 
are not very radical, and, as a whole, the movement is rather utilitarian. Finally, 
A2K is not as confrontational as many other social mobilizations. Most A2K 
advocates so far seem interested in withdrawing from the dialectal logic of direct 
power struggles, either with the state or with industry. 39 Members of the A2K 



72 KRIKORIAN 



constellation are not constituted as activists through a confrontational relation 
with "the" public, the way mobilizations of minorities can be, for instance. The aim 
of people who recognize themselves in the A2K discourse is mostly not to mark 
themselves off from the general public. They do not wish to materialize "subaltern 
counterpublics" dedicated to the formulation of "oppositional interpretations of 
their identities, interests, and needs," but instead seek to alter the cultural horizon 
represented by the dominant vision and in doing so transform the main discursive 
arena and constitute an alternative general public. 40 

The A2K movement is not so much based on a claim of the "unity" of all peo- 
ple and their struggles, but rather on the effort to convince others that they are 
affected, should be concerned, and should act accordingly 41 A2K constituencies 
are mobilized against a peculiar enemy, but they are organized in the name of a 
"shared" interpretation of their interests and needs, which is understood to extend 
to the interests and needs of the public. Individual particularities (disabilities, 
privilege, or status) are used by the collective to establish or legitimate its political 
power, but its dynamic is not based on the affirmation of particularities the way 
identity politics are. It seeks to increase awareness of the various problems and 
various needs of specific groups, but it also attempts to have a structural effect on 
the system as a whole by promoting equality of access. It thus also participates in 
the articulation of political claims for redistribution and recognition within a poli- 
tics of justice such as the one Nancy Fraser advocates. 42 

Herein lies an interesting tension, however. Even as there are minorities among 
its ranks speaking in the name of their own individual experiences (the visually 
impaired, AIDS patients, and so on), that is, from their "situated knowledge," to 
use Donna Haraway's formula, the claims that A2K advances (the defense of a 
public domain or of the commons, for example) are presented as possessing a uni- 
versal range. The A2K movement does not try to construct a "universal" subject, 
as "unity" movements sometimes do, but it does succeed in allowing the transla- 
tion of knowledge between communities and the realization of alliances between 
multiplicities. 43 Without prejudging the A2K movement's success or its future effi- 
cacy, we can observe that, for now, it manages to compose a collective interest that 
can be seen and presented as universal. Considered in this light, the A2K move- 
ment resembles the "multitude" that Michael Hardt and Antonio Negri describe as 
"singularities acting in common," a heterogeneous collective inheriting its inten- 
tionality in the progression from the singular to the common in which the concept 
of access becomes itself a dispositive of the organization of singularities. 44 

The A2K movement presents itself and is being seen as a nongovernmental 
force. It offers a critique of the standard decision-making processes — of pressures 
exerted on legal and executive institutions by the private sector, of the willingness 



A FIELD OF ACTIVISM 73 



of these institutions to surrender to these pressures — showing how they exclude, 
dissimulate, or neglect. But instead of emphasizing a position of exteriority, it 
incorporates the logic of governments, institutions, and industries and actually 
even also includes, in a very open way, individuals working for governments, as 
well as for private multinationals, in hopes of integrating these into something 
larger that it will have itself contributed to designing. The A2K movement occu- 
pies well-established institutional political spaces such as the WTO or WIPO and, 
at the same time, also seeks to create new political spaces and to legitimize them 
by co-opting institutional representatives from traditional political and economic 
power structures. It contributes to a blurring of the lines between genres through 
its ubiquitous and rather flexible ways of being and of engaging in debates. At the 
same time, it demonstrates the clear willingness of its constituencies to acquire 
a say in debates and to make use of what Hannah Arendt called their "power of 
speech" to establish themselves as political actors. 45 

GOVERNANCE AND RESISTANCE SEEN THROUGH THE PRISM OF ACCESS 

The field of A2K inequalities is a composite: It includes new types of inequalities, 
significantly increased preexisting inequalities, and those brought to light by the 
structuring role of the market in knowledge capitalism. A2K targets issues specifi- 
cally posed in the new digital society, but fundamentally, it raises classical prob- 
lems, such as inequalities in the distribution of resources, or social justice. What 
is novel is the prism used to analyze the problems, as well as the manner in which 
they are addressed — the modes of organization of political action that the A2K 
movement employs. 

As I've noted, the A2K movement comprises a diversity of references, political 
traditions, and forms of mobilization. Consequently, the phenomena and actions 
that A2K activists find intolerable and the reasons that spark their reactions are 
very diverse. As such, the movement illustrates and fits very well within the larger 
and more general movement of civil-society actors engaging in nongovernmen- 
tal politics. 46 This new conceptual field of political mobilization emerged in rela- 
tion to two different trends in politics. On the one hand, beginning in the early 
1970s, there was an increasing public demand for government accountability. On 
the other, attacks led by Margaret Thatcher and Ronald Reagan on the welfare 
state and on anticapitalist institutions such as labor unions and class-based politi- 
cal parties moved people away from traditional representative politics in the 1980s. 
Like other types of nongovernmental mobilizations, the A2K movement can be 
seen as the extension of politics "beyond the realm of representation" in reaction 
to "dysfunctions of the political realm." 47 Individuals and groups involved in the 



74 KRIKORIAN 



A2K movement share a common concern with the way intellectual property gover- 
nance is exercised and more generally question the way in which they and we are 
governed. 

Those who hold the reins of the dominant power structure try to convince 
people and societies that the established rules are made to guarantee equality of 
opportunity between individuals, as well as to ensure progress and wealth within 
the society. In the face of these attempts, organized denunciations put forward by 
social movements expose inequalities, hierarchies, and power relations that then 
cannot always easily be justified publicly, even if they are rationalized and validated 
within privileged circles. A2K advocates denounce the divergence between the the- 
oretical promotion of innovation, a value commonly accepted by all and invoked 
by those who govern to legitimate their policies, and the actual effect of the rules 
of intellectual property protection. They seek to "question the social norms that 
enable governing bodies to call upon unimpeachable principles in order to justify 
objectionable policies." 48 From the alliance between claims to rights of access and 
utilitarian criticisms of the intellectual property system thus emerges a movement 
generating its own particular politics: a politics of access. As such, the A2K move- 
ment illustrates an evolution in the culture of mobilization and collective action. 

Using the prism of access, the A2K movement attempts to reveal the disso- 
nances in what James C. Scott calls the "public transcript," the "open interaction 
between subordinates and those who dominate," of the dominant powers regard- 
ing matters of equality and democracy. It analyzes the asperities lying beneath 
supposedly calm political surfaces, thereby rendering possible the perception of 
injustice, as well as the moral questioning of it. 49 Refusing to accept the normaliza- 
tion of restrictions on access, the A2K movement makes needs visible and imposes 
upon political leaders the duty to meet them. Its existence tends to prove that 
despite — or perhaps because of— the willingness of the dominant powers to see 
inflexible intellectual property rules adopted and implemented, they fail in their 
attempt to naturalize social inequities regarding access. On the contrary, the issue 
of access is particularly useful and efficient as a way to catalyze questioning of the 
dominant powers and their regimes. 

However, one could argue that the act of voicing criticism and complaints 
against a situation that is perceived as having been imposed upon individuals by 
stronger forces (be it their leaders or their gods) is simply one aspect of a technique 
adopted in order to withstand a situation perceived as inevitable. So when move- 
ments or individuals denounce the intellectual property system and the inequalities 
that result from it, they contribute to a background noise of criticism whose exis- 
tence does little more than reveal a power relation within the established order, fol- 
lowing Foucault's idea that every power goes hand in hand with a form of resistance 



A FIELD OF ACTIVISM 75 



to it. Yet the fact that the dominant power structure is continuously trying to legiti- 
mize itself and its political decisions does not mean that these efforts are effective. 
That is, efforts to persuade the dominated do not necessarily lead to their consent. 
And as James C. Scott points out, the level of effort invested in maintaining a given 
power structure also provides one element that allows us to estimate the level of 
instability of this regime. 50 Thus, when it is possible to elude the hypnosis that the 
dominant power structure aims to induce, decoding the means that it uses to main- 
tain its hegemony and to make acts of resistance invisible informs the observer of 
both the weaknesses and the limits of the hegemonic power. 

One of the strengths of the A2K movement thus is the way in which a large 
number of different issues lead directly to questioning of the claims made by dom- 
inant powers and their regimes in order to legitimize themselves and their actions. 
When merely a small percentage of the people with HIV/AIDS across the world 
had access to the only drugs that could keep them alive, questions about access 
were raised and political tensions resulted. This phenomenon can be explained by 
the existence of a crisis situation (an uncontrolled and deadly pandemic) and the 
fact that the issue is a matter of life or death. 51 But where access is in question, 
contention forms and gains legitimacy in situations and on issues that do not nec- 
essarily correspond to what are generally viewed to be people's most vital needs, 
such as the enjoyment of the arts or access to educational material, aspects that 
prove to be indispensable to the well-being, the wealth, and the stability of indi- 
viduals and societies. 

As Lawrence Liang notes, some needs, as they are understood according to com- 
mon representations, do not necessarily conform to the "essential character" of 
what Gayatri Spivak calls the "subaltern subject." 52 Subalterns are usually seen as 
"the poor" in wealthy countries, "people from developing countries," and anybody 
who is discriminated against and essentialized as being inferior and consequently 
thought of as having mainly rudimentary needs. For these populations, needs that 
coincide with their desire to improve their well-being or their position in society — 
and hence needs that possibly go with tendencies to question or transgress the 
established order — tend to be easily disqualified. Similarly, regardless of what is 
stated by international declarations or conventions, what constitutes human rights 
often varies depending on whose rights are being discussed. A2K advocates ques- 
tion what qualifies as "primary" or "essential" needs or rights. They hold a variety of 
conceptions of needs and rights, from the need to save lives to Amartya Sen's notion 
of positive freedom and the necessity of taking into account a person's concrete 
ability to be or do something beyond the mere existence of theoretical "rights." 53 

Endeavors to politicize otherwise accepted situations and to promote what 
A2K advocates see as the legitimate expectations of individuals or of societies are 



76 KRIKORIAN 



all the more necessary because in a taken-for-granted hierarchy of needs, vital, 
but unmet needs systematically operate to obscure others that are perceived as 
less important. For example, the need for life-saving medicines obscures the need 
for cultural goods. By the same token, obvious price barriers that prevent people 
from meeting their basic needs mask the effect of less noticeable and less tangible 
obstacles: The effect of the high prices of books trumps the effect of copyright 
regimes. Moreover, most affected people do not necessarily have a clear under- 
standing of their own exclusion, for the principle underlined by Pierre Bourdieu 
operates fully: As cultural deprivation increases, the awareness thereof actually 
decreases. 54 Interviews investigating barriers to access to knowledge in Thailand 
revealed that "ordinary people" (by this I mean people who have no special inter- 
est in or knowledge of intellectual property) often have a difficult time identifying 
the concrete effect of intellectual property in their own daily lives. 55 The study 
found that a mother was quicker to blame changes in the curriculum at her child's 
school that required her to buy brand new books for her second child, instead of 
using the ones her first child used, than she was to identify the many barriers 
instituted by the enforcement of intellectual property rights. 

As Bourdieu has noted, for such people in such situations, "the problem is that, 
for the most part, the established order is not a problem." 56 It is the characteristic 
of power structures to dissemble the problems that they author and/or condone. 
Therefore, an important goal for the A2K mobilization is to educate people and 
encourage them to insist upon their needs and rights and the redefinition of them, 
rather than relinquish them in the face of situations that tend to obfuscate the true 
sources of their frustration. 57 

The A2K mobilization bears the political forms of an organized and formal 
movement confronting institutionalized powers, and it has been increasingly con- 
sidered as such. It also includes concealed individual acts of resistance and every- 
day-life actions that occur under the radar of the usual observers of social move- 
ments. Many such acts would be considered utilitarian, rather than as the result of 
a concerted or deliberate effort of resistance, but still, they contradict the rules of 
the dominant power. Music exchanges between friends, the occasional purchase of 
copies of DVDs or CDs in street markets in New York or Casablanca, the sharing of 
software among students and colleagues — each of these, albeit mostly unwittingly, 
constitutes grains of sand in the cogs of the system of intellectual property rights. 

New potentialities derived from changes in the production of wealth provide 
tools that allow ordinary people to resist domination discretely through simple 
daily actions, even while appearing to be mere passive and accepting subjects. 
These are the unstructured, hidden acts of resistance that belong to what Scott 
calls "infrapolitics." 58 Most individuals throughout history and still today have not 



A FIELD OF ACTIVISM 77 



enjoyed the luxury of becoming part of an organized and public political move- 
ment. However, a vast array of sporadic and often almost invisible political actions 
is commonly undertaken by subalterns in order to embellish their everyday life 
within the system or in order to weaken the forces of oppression, injustice, and 
repression. 59 Their actions are the subversive ways of being that are the province 
of the dominated: poaching, escaping, finagling, pirating, getting around the law 
when they are outcasts, or trying to use loopholes in the law, leaking documents 
when they are government agents. 

One of the challenges for the A2K movement is to help "ordinary people" real- 
ize that they have an interest in engaging in these battles and that they have the 
means to do so. This is how the conditions of the reproduction of domination- 
including the fact that they appear legitimate to the dominated themselves — can 
be disrupted. In encouraging resistance by ordinary people, the A2K movement 
can take advantage of the possibilities resulting from the alliance of new technolo- 
gies with the new aspirations that have emerged with them. 

PERSPECTIVES AND REPRESENTATIONS SEEN THROUGH THE A2K PRISM 

The potential success of the A2K movement thus depends not only on its ability 
to make visible and emphasize the social dimensions and effects of the protection 
of intellectual property, but on its ability to help individuals to perceive the world 
differently. 

A2K scholars and activists try to give a higher profile to concepts such as the 
"commons" or the "public domain," concepts that offer resources and alternatives 
in the organization of society on a pragmatic level and that also provide individu- 
als with ways to question and rethink their relations to their economic, social, and 
political environment. This means undoing, to some extent, prevailing conceptions 
and beliefs by digging breaches in the imaginary established by the advocates 
for increased intellectual property restrictions and by summoning references and 
knowledge ignored or disregarded in the current system. 

Many of the questions that are discussed by A2K advocates, such as the com- 
mons or the role of the public domain, have been raised in the past. However, 
the memory of these previous discussions seems to have been lost, and the terms 
of the debates have been reversed. Contrary to discussions in the eighteenth and 
nineteenth centuries, today, the ultimate fear is not seeing the public domain 
eviscerated, but rather seeing intellectual property contravened. Reflection and 
analysis are massively focusing on how to create new exclusive rights and how 
to enforce them, while needed debates on how the commons can be organized 
and managed, for instance, occupy a small minority of people. For things to be 



78 KRIKORIAN 



different, an inversion of perspectives is required, something that would shake 
up the realm of representations. Doing so requires the movement to be able to 
question the social values inculcated in the system in which we live — values at the 
origin of the production of representations and of behaviors. 

I won't discuss in detail here the arguments and concepts employed by defend- 
ers of access to knowledge and their critiques of the claims advanced by advo- 
cates of intellectual property extremism. They appear throughout the book and 
are discussed in depth in Amy Kapczynski's introductory essay, "Toward a Concep- 
tual Genealogy of Access to Knowledge." Rather, I will conclude here by exploring 
what is at stake in the maintenance and reproduction of the representations and 
social values that underwrite the effort to preserve and extend intellectual prop- 
erty restrictions and in the A2K movement's efforts to disrupt those representa- 
tions and appeal to other values. 

The conversion into privately owned goods of goods and ideas that once con- 
stituted property held in common or that were not included in the realm of prop- 
erty diminishes the sense of the role commons or public goods play in society, 
because valorizing private property depreciates the value of goods accessible by 
all. Thus, the emergence of the concept of intellectual property and the exponen- 
tial growth of the protection of intellectual property rights have accompanied the 
relinquishment of the belief in the "productive power of the commons" and has 
inhibited recognition of the possibility that types of economy based on something 
other than the possession and exploitation of private property are viable. 60 Mean- 
while, the logic of privatization, together with the rationality claimed for mar- 
kets, both of which are fostered and publicly praised by neoliberals, largely have 
helped undermine the values attributed to all that is public. These developments 
slowly, yet profoundly change the way that societies are organized, as well as their 
dynamics of consumption, the relationship between individuals, and even individ- 
uals' understanding of themselves. At the time of the first enclosure movement, 
the privatization of the land was claimed to be a way to limit "strategies of over- 
use and underinvestment," and the transformations of economies that it generated 
were often viewed as progressive and beneficial to society 61 Although these asser- 
tions are debatable, the notion that "this innovation in property systems allowed 
an unparalleled expansion of productive possibilities" still prevails without being 
subject to direct discussion in most cases. 62 Those are beliefs that accompanied the 
establishment of the current intellectual property system and on which claims for 
the apparent superiority of the model since then have rested. 

In today's society, some A2K advocates argue that a second enclosure move- 
ment, in the form of increasing restrictions on intellectual property, immaterial 
property, and other forms of information and knowledge mostly favors strategies 



A FIELD OF ACTIVISM 79 



that "undermine processes of abundance intrinsic to nature" and thus organize 
"artificial scarcity" while ultimately harming the innovative potential of individu- 
als and societies. 53 Some believe that the technological changes that took place in 
the past several decades should lead to radical change in the way the knowledge 
economy is thought about and organized, including the ways that intellectual prop- 
erty rights are conceived and used. 64 As critics point out, for instance, nonrivalrous 
goods are increasingly involved in human activities, and there can be "no tragedy 
for nonrivalrous goods left in the commons," because by definition, "a nonrivalrous 
resource can't be exhausted." 65 Such evolutions require a general reassessment of 
attitudes and laws regarding property, because what may have been seen as pre- 
dominantly beneficial to societies in the past and in the context of mercantile or 
industrial capitalism leads in the context of today's knowledge economy to dead 
ends and dangerous imbalances in economic distribution. Developments such as 
these are in themselves favorable to the emergence or reemergence of alternative 
visions to the escalation of the protection of intellectual property rights. 

For the A2K movement, ideology is perceived as a trap, either because it is 
a label placed upon the movement to undermine its credibility (when it is called 
"Communist" by its enemies) or because it is seen as a dogmatism that does not 
correspond to the movement's flexibilities and aspirations to inclusiveness. The 
A2K movement therefore bases its legitimacy on other things in order to promote 
the desired transition from the intellectual property regime to the A2K paradigm. 
However, in this time of global financial, economic, and ecological crisis, which 
may contribute to dispelling the illusion of the efficiency and cohesion of the 
neoliberal state and undermine its credibility, alternative propositions for society 
might find a better environment for their development and reception. 66 Under 
present conditions, it may become possible to question the dominant discourses 
and make other fictions intelligible, other possibilities comprehensible. 

From the struggle over intellectual property emerges the common understanding 
that creativity, whether it is used as a justification for intellectual property rights or 
sought simply for its own good, represents an ultimate goal and a shared value in our 
contemporary world. 67 Of course, A2K advocates and the defenders of copyrights 
and other exclusive rights remain opposed regarding the issue of what makes cre- 
ation possible and of how creation takes place. Here, the conflict is between those 
who deem that the best way to meet this goal is through more control over intellec- 
tual property and those who, on the contrary, think it is through increased freedom. 

One of the major criticisms of the proprietarian approach is that it in fact fails 
to fulfill what it promises: the promotion and guarantee of innovation. Instead, 
while shrinking the public domain, it actually jeopardizes or "cripples" creativ- 
ity, to use Lessig's eloquent expression. 68 The first thing that property rules limit 



80 KRIKORIAN 



is indeed that freedom to assimilate and transform knowledge, a freedom that is 
critical to creation, whether it be achieved through direct copying or mere quot- 
ing. Extremist intellectual property positions tend to banish totally the possibili- 
ties of quotation and borrowing. This is the case with audiovisual technologies, 
for example, for which the right to quotation is almost nonexistent, in spite of 
the fact that it has always existed for other media and disciplines. To take a com- 
monplace example, imagine what science would be like if scientists couldn't quote 
and use each other's work and thereby expose and criticize or improve preexist- 
ing assumptions or demonstrations. At the other end of the spectrum of quoting 
practices, the collection of quotations assembled by philosopher and critic Walter 
Benjamin, which was at the center of his work, provides a good example of how 
the montage and rearrangement of existing pieces of text can generate original 
creation, reveal hidden aspects of what has been taken for granted, and forge 
novel understanding of reality: "Benjamin's ideal" was to produce "a work con- 
sisting entirely of quotations, one that was mounted so masterfully that it could 
dispense with any accompanying text. . . . The main work consisted in tearing frag- 
ments out of their context and arranging them afresh in such a way that they illus- 
trated one another and were able to prove their raison d'etre in a free-floating 
state, as it were." 69 

Similarly, the creative function of quoting and borrowing has always been 
essential to music composition. Citations, manipulations "a la maniere de," and bla- 
tant references to preceding masters have figured throughout the classical music 
composition that marked the eighteenth and nineteenth centuries and the movie 
soundtracks of the twentieth century, to mention only two examples. Today, artis- 
tic and intellectual production using digital technologies continues to be depen- 
dant on the ability to copy and to borrow. Perhaps in an even more obvious man- 
ner than before, previous works are the raw material of future creation. As Cory 
Doctorow notes: "if copying on the Internet were ended tomorrow, it would be the 
end of culture on the Internet too. YouTube would vanish without its storehouse 
of infringing clips; LiveJournal would be dead without all those interesting little 
user-icons and those fascinating pastebombs from books, news-stories and blogs; 
Flickr would dry up and blow away without all those photos of copyrighted, trade- 
marked and otherwise protected objects, works, and scenes." 70 

But the freedom to use existing things affects not only our ability to produce, 
determining the number of tools and quantity of raw material that we access, but 
also the ways we comprehend things and relate to them. The act of quoting allows 
us to place ourselves and our discourses within a heritage, a continuity. Thus, the 
sphere of immaterial public goods or immaterial commons involves more than just 
sources of inspiration or mere material resources of creativity. It offers individuals 



A FIELD OF ACTIVISM 



shared landmarks that inscribe them in a common temporality that is a present 
time, but also a common past. One who subtracts material from the public field 
disrupts and impoverishes the collective memory and in so doing affects the 
capacity of individuals to think for themselves, collectively as well as individually. 
As Hannah Arendt put it, what Walter Benjamin called the "collector's attitude" 
results in the withdrawal of things from the public and with them "all kinds of 
things that were once public property" as a way to establish himself in the past. 71 
Consequently, others are deprived of the opportunity to make the same kind of 
connection, because the act of withdrawing goods from the public domain can be 
compared to the act of removing elements of a common past, thereby foreclosing 
the possibility of common relationships to them that otherwise would be allowed 
to the rest of society. Public goods are made of a common past shared in the pres- 
ent, and access to partial or truncated material limits not only individuals' ability 
to act and to create in that present, but also their relationship to the past, to their 
culture, and to their history. It is through material traces left by others that the 
past is made accessible, allowing history to play its proper social role and position- 
ing individuals as cultural mediators. 

The cultural losses, impoverishment, and amnesia that occur in the name of 
progress and innovation also occur in a geopolitical dimension. In developing 
countries, and that means many countries of the world, portions of their cultural 
heritage are lost at the hands of the macroprocesses associated with capitalist pres- 
sure that favors the spread of Western culture, as well as by virtue of the limited 
means (financial, technological, or legal) available in these countries to store and 
share their cultural resources. This is not to say that there is necessarily an extinc- 
tion of the cultures that fail to qualify as dominant, or that these cultures do not 
disseminate ideas and works on a global scale, as well, or even that globalization 
necessarily transforms people in non-Western countries into simple consumers of 
imported cultural goods. Indeed, appropriation and transformation processes take 
place everywhere. They happen when Indians watch, enjoy, and reinterpret Amer- 
ican TV shows, when Americans shoot movies that aim at portraying the reality of 
Indian cities in a more authentic way than Bollywood does, and when the booty 
bass music from U.S. ghettos becomes the baile funk of the Brazilian favelas before 
being adapted by Italian musicians and distributed by German producers at Pari- 
sian parties. But the control by intellectual property rules of access to technologies 
and resources surely favors certain flows and certain directions for these flows. 
It limits or harms the preservation and transmission of certain cultural produc- 
tions. At the same time, knowledge that is privatized and removed from the public 
domain in wealthy countries or anywhere else on the planet is thus made inacces- 
sible to most people in these countries, since the only way to access resources is 



82 KRIKORIAN 



then to pay for access. "As in the relation between colonized and colonizer, knowl- 
edge is anything but symmetrical." 72 

This is what is called cultural domination. And if it has implications for the 
production of and access to knowledge, it can also interfere with the conceptual 
work of the A2K movement itself. For example, despite the best of intentions, use 
of a notion such as the public domain might reinforce existing cultural domination. 
As Carlos M. Correa and Jeffrey Atteberry mention in this volume, advocating the 
defense and expansion of the public domain applied to traditional knowledge or 
biodiversity can also allow corporations to seize whatever knowledge or resources 
they want, while indigenous people remain once more without control over the 
means needed to protect their own resources and the ways in which they are val- 
ued and employed. 73 

This is where the A2K constellation might want to consider its geographi- 
cal positions and contours with caution, for tensions over the issues of intellec- 
tual property are produced not only in the context of exploiting or opposing the 
operations of capitalist logic, but also in the context of exercising or resisting the 
exercise of imperialist logic. To serve the equality or universality sought by A2K 
advocates, their own practices of conceptualizing what they consider to be desir- 
able ends must constantly be reflected on and questioned, taking such contexts 
into account. A dominant culture "tends to produce the representations through 
which it is perceived (whether rejected or imitated) by others," 74 which naturally 
affects the criticisms that are formulated against it and the solutions called upon 
to facilitate emancipation therefrom. In the process of elaborating "its own repre- 
sentations of the dominant culture," any struggle against this domination needs to 
question the values that the critics of the dominant culture themselves promote 
and the way they define and use them, whether the topic be property, private 
ownership, or the concept of the commons or the public domain. 75 It is particularly 
what constitutes their common share, the metal of the two faces of the coin that 
unites proponents and opponents of the dominant culture, that requires meticu- 
lous questioning. 

Cultural domination has many ways to influence people's behaviors and their 
comprehension of what is possible and what is not. Fear is an essential element 
employed in the arguments for intellectual property rights protection and in the 
discourses of neoliberal rationality as a means of influencing people's choices and 
behavior. We live in an era when, at least in Western countries, the fear of getting 
in trouble for having encroached upon others' property (even when the boundar- 
ies that define it are invisible) is almost omnipresent. Penalties are involved: Minor 
encroachments can make you liable for damages, subject you to social opprobrium, 
and even lead to legal punishments. But in a less draconian manner, we've been 



A FIELD OF ACTIVISM 83 



taught to fear that unless you've paid well for what you acquire, you can end up 
less well off than you were before, due to the possibility that what you are getting 
is "bad" by nature: It is of poor quality, won't last, and/or it is harmful. This follows 
as a matter of course from the "wisdom" that holds that if you want quality, you 
have to pay for it. As Lessig has noted "lurking in the background of our collec- 
tive thought is a hunch that free resources are somehow inferior." 76 Bad quality for 
instance, will have consequences on your health if what you are getting is medicines, 
and it can damage your computer or make you lose all your data if it is software. 

As Wendy Brown has put it, in the neoliberal context, the state "attempts to 
construct prudent subjects through policies that organize such prudence." 77 And 
people are forced to choose sides. Antipiracy advertisements remind us in blunt 
terms of the choice that is offered: If you buy copies of DVDs or software, "you 
are either for terrorism or support the war on terror." 78 Under the current domi- 
nant political rationality, what is considered "property infringement," "piracy," and 
"terrorism" seem easier and easier to equate with each other and assimilate to each 
other. Professionals who work in the copyright field can testify that this conflation 
of infringements of intellectual property rights with terrorism is not only propa- 
ganda intended for the general public, but a message that shapes policy making. 
It is indeed becoming common to hear people in national policy-making or inter- 
national meetings equating piracy with terrorism without hesitation or any sense 
of restraint. In the end, the result is a vicious circle: Even if enforcement policies 
cannot pin down each act of infringement, the scarecrow effect of criminalization 
fuels fears and suspicions that deter people's infringing behaviors. 

In Argentina in 2002, workers took control of the Zanon plant in an occupation 
that continued for several years. The plant, a ceramics factory that had been closed 
by an owner who no longer considered it profitable, had previously received mil- 
lions of dollars in public subsidies as part of the corporate welfare program of the 
Carlos Menem government. The workers decided to reject their fate and called for 
the expropriation of the plant in the name of the public investment made, declar- 
ing Zanon "of the people." 79 They exercised the "right to reappropriation" of the 
multitude that, according to Hardt and Negri "is first of all the right of reappropri- 
ation of the means of production." 80 They decided to seize control of the engine of 
production and render it the common property of those who actually operated it. 
In the face of this attempt to impose an alternative way of being, Menem declared 
that "we will impose order. . .we will impose respect of the state of law. Among 
other things, the right to private property" 81 

In this episode, two ethics conflicted. In the end, as force was deployed by 
the state, the right to private property prevailed in most of the plants. But it is 
certainly easier to enforce property rights and hunt down pirates in the physical 



84 KRIKORIAN 



world than in the digital one. In the immaterial realm, reappropriation does not 
necessarily require expropriation. It is use that is the key. 82 Thus, the terms of the 
confrontation may change. 

Use per se can be subversive. If beliefs and fears do not curb it, the use that 
people make of protected material can open breaches in immaterial barriers and 
render them useless as filters, taking away from them the power to confer profit 
and social position. Massive use by individuals of data covered by intellectual 
property rights can easily become uncontrollable, and organized digital networks 
can impose a commons by simple virtue of producing and making available their 
production. To refuse the manufacturing of illegality and criminalization appears 
in itself as a legitimate and useful horizon for the A2K movement, starting with 
questioning the definition of what is illegal by performing threatened acts and 
challenging the hold of fear. 83 

But what the issue of use determines is also the way questions are politicized. 
With the advent of a world in which the production of immaterial goods is increas- 
ing can also come new ways to conceptualize and formulate politics as well as to 
elaborate political action, because in such a world, possession is not exactly the 
same thing as ownership. The conflict over the Zanon ceramics plant was staged 
over the material means of production. Where immaterial goods are involved, ben- 
efiting from capitalist appropriation does not necessarily require possessing the 
means of production. Instead, it involves having control over what is to be given 
value — goods and elements that in fact cannot anyway be materially owned. In 
this context, it is access that needs to be controlled, rather than the strict owner- 
ship of goods. That is why access is such a central issue, why it is at the center of 
so many conflicts today. 

The issue of access is a central issue because it is a product of its time. 84 Yet 
emphasizing it is also a strategic choice: The machine that we are ourselves is obvi- 
ously more complex than a machine in a plant. So are its relationships and interac- 
tions with the material and immaterial environments that surround it. Thus, the 
agency that is involved in its use challenges control in many ways and can more 
easily evade it, as the ever more repressive attempts to enforce intellectual prop- 
erty rights demonstrate. Thus, seen through the prism of access, the terms that 
crystallize political mobilization differ. They no longer begin with the distinction 
between public and private property. When attention is focused on access, what 
is invoked is justice, equality, or freedom, without directly confronting the issue 
of property. 

But of course, the issue of property cannot so easily be liquidated. On the con- 
trary, the current struggles over access to knowledge reopen a debate over prop- 
erty. Through efforts to build social rights based on the new, emerging possibilities 



A FIELD OF ACTIVISM 85 



for sharing and an ideal of access, the movement questions property and the role 
it should play in our societies. It is a whole field of contests that open along new 
lines of conflict. Meanwhile, as in other contexts, to exercise freedom — here, the 
freedom of use — requires being in the position to do so, and thus, there is no 
escape from the issue of the conditions necessary to exert freedom. 

CONCLUSION 

The global increase and strengthening of norms of intellectual property protection 
in the past decades is symptomatic of the emergence of information technologies 
and attempts by capitalist entrepreneurs to benefit from these changes. Because 
we are in a phase of intense globalization of economic exchanges and communica- 
tion in which the materiality of property dissolves, capitalists, seeking accumula- 
tion, have tried to define, categorize, and make the most of immaterial property. 
But in the knowledge economy, old models have become obsolete on many levels. 
Intellectual property rights owners do not seem to realize it, but cognitive capital- 
ism relies on forms of creation and innovation derived from new modes of produc- 
tion. The production process is increasingly based on "a new relationship between 
production and consumption," and as Maurizio Lazzarato points out, "what is 'pro- 
ductive' is the whole of the social relation." 85 In the end, this new relationship may 
advance the legitimacy of the A2K movement more than anything else, and rights 
owners may simply prove unable to adapt: To date, their responses to the major 
technological changes that have altered the functioning of capitalism have priori- 
tized the pursuit and the fortification of old strategies. Attempts to maintain these 
models by criminalizing and forbidding human behavior, although they fit well 
the ways of neoliberal governance, appear obsolete, poorly adapted to the current 
reality, and redolent of the "putrid and tyrannical obsolescence" that Hardt and 
Negri evoke. 86 As Immanuel Wallerstein says about the future of the United States, 
it may be that factors that originally worked to establish the intellectual property 
system's hegemony will ultimately bring about its end. 87 

New forms of communication and production also influence the way people 
interact with each other and engage in the production of culture and informa- 
tion. 88 The free and open-source software movement shows the efficacy of these 
social practices of production, sharing, and distribution. Such practices are not in 
themselves new, but exercised in the current technological and political context, 
they bring new potentialities in terms of individual capacities and collective action 
and may contribute to the production of the conditions for the emergence of a 
new political subjectivity. They represent a power in the capitalist world on which 
the A2K movement can rely to promote a new politics and new ways of doing 



86 KRIKORIAN 



politics. The relational aspects of creation and knowledge production imply a form 
of equality in the process through which individuals contribute and exchange. 
This equality is both a practice of creation (the "horizontal" communication and 
collaboration allowed by new technologies and formats, such as blogs and social- 
networking sites) and a political value promoted by A2K advocates who take 
into account the various needs and particularities of specific groups of individ- 
uals. Because of the nature of digital goods, the exercise of the freedom of use 
represents a possible course of action for movements and a key value to them. 
The A2K movement thus corresponds to a form of mobilization that can concili- 
ate an inheritance from identity politics and more traditional claims for social jus- 
tice. In that respect, the A2K movement represents an evolution in the modes of 
social mobilization. 

The alliance between new forms of production based on new approaches to 
cooperation, on the one hand, and ways to conceptualize politics developed and 
brought to the forefront by the A2K movement, on the other, may provide an 
opportunity to oppose intellectual property extremism. More broadly, such a 
development also offers the chance to act outside of the immaterial walls erected 
by intellectual property protection and to exit at least intermittently from the con- 
straints of neoliberal rationality, even perhaps causing the state to act in a differ- 
ent manner, as well. 

The neoliberal form of colonization is a cultural and political attempt at subjec- 
tion affecting every individual. A2K advocates are looking for a way out, promot- 
ing a morality based on values they wish to see emerge in politics. In the eyes of 
those in the movement, the current system is not good for two main reasons: It 
does not fulfill its own objectives in terms of innovation, and it is not fair in terms 
of access. As a field of activism, the A2K movement fights on both of these fronts 
and articulates one to the other, one preceding the other according to the context 
of the discussion within political spheres or in public debate. While the utilitarian 
concerns of the A2K movement anchor it in the capitalist system, its social justice 
claims reinject a moral dimension into the discussion, because the issue of access 
offers a new way to consider the issue of property. A2K advocates make use of 
the issue of access to rally many different constituencies, taking advantage of the 
flexibility of the notion to elude a number of pitfalls, whether these be representa- 
tions they want to evade (dominant ideologies, political labels) or political tradi- 
tions they do not want to identify with or be identified with because they seem 
outdated and do not appear to offer successful avenues for change. 

The use of the issue of access makes it possible to avoid such pitfalls, but ulti- 
mately, it also leads in its own way to a critique of property. If everybody can 
access a good, the benefit of property instantly crumbles. The other side of the 



A FIELD OF ACTIVISM 87 



coin is that in the immaterial world, the control of access de facto replaces owner- 
ship. Thus, the political result of the A2K strategy may lead to greater disruptions 
than what many actors were anticipating when they first became involved in this 
battle. This is where a new politics of access to knowledge starts. 



NOTES 

The author is grateful to Harriet Hirshorn, Karyn Kaplan, and Tunde Oyewole for their assis- 
tance in translating this piece into English. 

1 David Harvey, A Brief History of Neoliberaiism (New York: Oxford University Press, 2005). 

2 For a cinematic illustration of the spirit of the gleaner, see Les glaneurs et la glaneuse (The 
Gleaners and I, 2000), written and directed by Agnes Varda, where gleaning can be seen both 
as a possible choice for individual existence in our consumer societies as a way to create 
in the context of the digital technologies. Michel de Certeau, The Practice of Everyday Life, 
trans. Steven Rendall (Berkeley: University of California Press, 1984), p. xii. 

3 James Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," 
Law and Contemporary Problems 66, nos. 1-2 (Winter-Spring 2003): pp. 39-40. 

4 For a detailed discussion of information and knowledge and the implications of the differ- 
ences between the two terms for the A2K movement, see Amy Kapczynski's essay 'Access to 
Knowledge: A Conceptual Genealogy" in this volume. 

5 Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New 
York: Random House, 2001), p. 9. The book is available under a Creative Commons Attribu- 
tion-Noncommercial License at: http://www.lessig.org/blog/2008/oi/the_future_of_ideas_ 
is_now_fre_l.html (last accessed January 26, 2010). 

6 On the global scale, for example, the volume of financial exchanges is fifty times greater than 
the volume of exchanges of concrete products in the real economy 

7 Lessig, The Future of Ideas, p. 7. 

8 See Gaelle Krikorian, "Interview with Yann Moulier Boutang," in this volume. 

9 Yochai Benkler shows how open-network, open-source innovation developed from the com- 
puter world and the organizational superiority of this model. See Yochai Benkler, The Wealth 
of Networks: How Social Production Transforms Markets and Freedom (New Haven, CT: Yale 
University Press). The book is available under a Creative Commons Attribution Noncommer- 
cial Sharealike License at http://cyber.law.harvard.edu/wealth_of_networks/Download_ 
PDFs_of_the_book (last accessed January 26, 2010). 

10 "The Love-In: The Move Toward Open Innovation Is Beginning to Transform Entire Indus- 
tries," The Economist, October 11, 2007, available on-line at http://w4.stern.nyu.edu/news/ 
docs/love. pdf (last accessed January 26, 2010). 

11 In cases where the control of creation through exclusive rights remains part of the business 
strategy, changes in business models and practices nevertheless call into question and revise 
the exact role and place given to intellectual property protection and the types of protections 
that are more adapted for a given product or context — patents or brands, for example. 



KRIKORIAN 



12 Yann Moulier Boutang, Le capitalisme cognitif: La nouvelle grande transformation (Paris: Edi- 
tions Amsterdam, 2007), pp. 82-116. 

13 Carlo Vercellone, "Les politiques de developpement a l'heure du capitalisme cognitive," Mul- 
titudes, no. 10 (October 2002): p. 14, available on-line at http://multitudes.samizdat.net/ 
Les-politiques-de-developpement-a (last accessed January 26, 2010). 

14 Sorting information is a key issue for many in the virtual world. You may be surrounded by 
information and still not have access to knowledge or be in a position to enjoy it or use it 
if you cannot sort and select the information you need or the appropriate knowledge. It is 
not for nothing that strategies to counter censorship of the Internet are in part based on the 
camouflaging of pertinent information in an accumulation of useless data, forcing would-be 
censors to lose as much time as possible in the search for "subversive" content. For example, 
these tactics were used by individuals trying to communicate inside and outside Iran dur- 
ing the presidential election in June 2009. See Blondeau Olivier and Allard Laurence, "L'Iran 
ou la guerre des proxies: Vers une culture publique de la securite informatique?" Fondation 
pour l'lnnovation Politique, available on-line at http://www.fondapol.org/les-travaux/ 
toutes-les-publications/publication/titre/liran-ou-la-guerre-des-proxies-vers-une-culture- 
publique-de-la-securite-informatique.html (last accessed January 26, 2010). 

15 Moulier Boutang, Le capitalisme cognitif, p. 157 

16 Another problem is that behind the use of the term "intellectual" as an umbrella adjective to 
characterize legal rights that concern disparate intangible assets in forms and natures lies an 
ideological manipulation to legitimize a political move dedicated to serve simultaneously the 
interest of a heterogeneous set of industries. James Boyle, "The Second Enclosure Movement 
and the Construction of the Public Domain," Law and Contemporary Problems 66, nos. 1-2 
(Winter-Spring 2003). 

17 Electrified fences, concrete blocks, thermal, metric, and biometric detection systems, sensors, 
and other devices, such as those built in Palestine, Cyprus, around Ceuta and Melilla in the 
western Sahara, on the border between the United States and Mexico, in Kashmir, or on the 
border of Botswana, are only a few contexts in which these physical walls were built. For an 
analysis of the multiple functions of contemporary walls in neoliberal globalization during 
the contemporary decline of sovereignty, see Wendy Brown, Walled States, Waning Sover- 
eignty (New York: Zone Books, 2010). 

18 The strategy of the Recording Industry Association of America (RIAA) for example, consists 
of picking a sample of individuals (around forty thousand) out of a pool of millions who 
have been identified as sharing music, then claiming copyright infringement and threatening 
to take them to court. In August 2007 four major music labels, the Universal Music Group, 
Warner Music Group, EMI, and Sony Music, filed a suit against JoelTenenbaum, a graduate 
student, for file downloading and illegal sharing. Tenenbaum, along with Jammie Thomas- 
Rasset, were then the only persons in the United States accused of illegal file sharing to have 
their cases taken before a jury. The vast majority of people when contacted by copyright 
owners claiming copyright infringement agree to pay the requested financial settlement. In 
June 2009, Thomas-Rasset was found liable for copyright infringement and ordered to pay 
nearly $2 million. In July 2009, Tenenbaum was condemned to pay $675,000 for illegally 
downloading and distributing thirty copyrighted songs. He decided to appeal. See JoelTenen- 
baum, "How it Feels to be Sued for $4. 5m," guardian.co.uk Music Blog, available on-line at 
http://www.guardian.co.uk/music/musicblog/2009/jul/27/filesharing-music-industry (last 



A FIELD OF ACTIVISM 89 



accessed January 26, 2010). Meanwhile, file sharing and illegal file downloading are com- 
mon practices. A research into the music consumption of fourteen-to-twenty-four-year-olds 
commissioned by the British Music Rights (BMR) organization and carried out by the Uni- 
versity of Hertfordshire showed that, 95 percent of those surveyed had copied music illegally 
and that on average, half of the content on their MP3 players was downloaded illegally. A 
study also indicated that uploading music for others to share was seen by them as "altruis- 
tic" behavior. See Rosie Swash, "Half the Music on Average Teenager's MP3 Player is Illegal," 
guardian.co.uk, June 16, 2008, available on-line at: http://www.guardian.co.uk/music/2008/ 
jun/l6/news.rosieswash3 (last accessed January 26, 2010). 

19 Cory Doctorow, "Why I Copyfight," Locus Magazine, November 2008, available on-line at 
http://www.locusmag.com/Features/2008/ll/cory-doctorow-why-i-copyfight.html (last 
accessed January 26, 2010). 

20 Moulier Boutang, in "Interview with Yann Moulier Boutang" in this volume. 

21 It would be worth discussing at length whether the Internet can be seen as a public space in 
Hannah Arendt's sense and whether the public domain can be understood as being equiv- 
alent to the political domain. The political implications of this question are important for 
the issue of the preservation of public space and as a context for the ability of individuals 
to realize political action. According to Arendt, a public space is a space that allows active 
citizenship, a space in which individuals can gather and encounter one another to deliberate 
about matters of collective concern. In such political spaces, each citizen is in a position to 
exercise the powers of agency, to develop the capacities for judgment, and to develop con- 
certed action aiming at political efficacy. Initiatives such as the Web site www.nosdeputes.fr, 
dedicated to the observation by citizens of the activities of the members of the French Parlia- 
ment, the sharing of political information, and the pooling of citizens' comments, resemble 
an attempt to create such a space. 

22 Doctorow, "Why I Copyfight." 

23 Lawrence Lessig, "In Defense of Piracy," Wall Street Journal, October 12, 2008, available on- 
line at http://online.wsj.com/article/SBi22367645363324303.html (last accessed January 27, 
2010). 

24 Moulier Boutang, Le capitalisme cognitif. 

25 With 71 percent of the votes in its country, the Swedish Piratpartiet won two seats in the 
European Parliament during the European election on June 7, 2009. The party, which was cre- 
ated three years earlier, claimed around fifty thousand members and emerged as a new politi- 
cal force — it was ranked third during the election in Sweden. Philippe Riviere, "Apres les 
elections europeennes: Emergence du pouvoir pirate," Le Monde Diplomatique, June 12, 2009. 
This mobilization can in part be explained as a reaction to the condemnation by a Swedish 
court of The Pirate Bay in April 2009. The Pirate Bay offered a search engine making copy- 
right-protected files accessible for illegal file sharing via the Piratebay.org Web site, one of 
the most visited BitTorrent destinations in the world. The Stockholm District Court sentenced 
four persons who contributed to the development of the Web site, Gottfrid Svartholm Warg, 
Peter Sunde, Fredrik Neij, and Carl Lundstrom, to one year each in prison each and assessed 
$3.6 million in penalties to pay to the record and film companies whose rights were infringed. 

26 Wendy Brown, "Neoliberalism and the End of Liberal Democracy," in Edgework: Critical 
Essays on Knowledge and Politics (Princeton, NJ: Princeton University Press, 2005), pp. 40, 
46-53- 



90 KRIKORIAN 



27 Michel Foucault, The Birth of Biopolitics: Lectures at the College de France, 1978-1979, ed. 
Michael Senellart, trans. Graham Burchell (New York: Palgrave Macmillan, 2008); Brown, 
"Neoliberalism and the End of Liberal Democracy," p. 52. 

28 Peter Drahos discusses the moves of the industry and its collaboration with governments in 
"'IP World' — Made by TNC Inc." in this volume. And in "Free-Trade Agreements and Neolib- 
eralism: How to Derail the Political Rationales that Impose Strong Intellectual Property Pro- 
tection" in this volume, I develop the relationship between neoliberalism and the transforma- 
tions triggered by the industry regarding intellectual property rights. As Michel Feher notes, 
however, the motivation for the neoliberal state to support industry is not systematical. It is 
mostly fueled by the political gain that the state can foresee in the crisis of sovereignty that 
it is facing in its desire to optimize its "residual power." For a discussion of the functioning 
of neoliberalism see the analysis developed by Michel Feher in Vacarme, starting in Vacarme 
51 (Spring 2010) and continuing in the following issues. If that proves true, despite the social 
determinism that influences actors and other class interests at stake, an interesting avenue 
could open to A2K advocates, as long as they succeed in framing what they would like the 
state to do in a way that convinces it that such actions will serve to shore up its political 
power. This is something that has begun to happen to some extent with environmental issues: 
The adoption of policies in favor of the environment has become politically rewarding. For- 
mer vice president and presidential candidate Al Gore's campaign against global warming is 
probably both a trigger and an illustration of this trend. See, for example, the movie An 
Inconvenient Truth, which revolves around Al Gore's travels and his efforts to educate the 
public about the climate crisis. 

29 Comparing the range of modes of action employed by the A2K movement and the advocates 
of increased intellectual property protections, one notices that most of them are the same. In 
addition to lobbying and trying to infiltrate political arenas, both use media, public actions, 
and the denunciation of state policies. Advocates of increased intellectual property protec- 
tions benefit from public actions by activist groups, as was the case when an unknown group 
that started to be called "the Red Shirts" by AIDS activists because they wore red shirts dur- 
ing their actions, took the floor in support of the big pharmaceutical companies on several 
occasions during an international AIDS conference in Bangkok in 2004. They also occasionally 
resort to aggressive campaigns in newspapers. USA for Innovation, an NGO advocating for 
the pharmaceutical company Abbott, published harsh attacks against the Thai government 
when it issued compulsory licenses. Although intellectual property advocates do not organize 
public marches, the difference between the registers of intervention that they employ and 
those of the A2K movement is mostly a matter of proportion, not of kind. 

30 On the advocacy and rhetorical strategies of the proponents of strong intellectual prop- 
erty rights, see Peter Drahos, with John Braithwaite, Information Feudalism: Who Owns the 
Knowledge Economy (New York: The New Press, 2002), pp. 61-62, 68-71, 189-90; Peter Dra- 
hos, "Global Property Rights in Information: The Story of TRIPS at the GATT," Prometheus 
13, no. l (1995): pp. 6-19; Susan K. Sell, Private Power, Public Law: The Globalization of Intel- 
lectual Property Rights (Cambridge: Cambridge University Press, 2003), pp. 81-97 and 97-100; 
Amy Kapczynski, "The Access to Knowledge Mobilization and the New Politics of Intellectual 
Property," Yale Law Journal 117, no. 5 (March 2008): pp. 839-51, available on-line at http:// 
papers. ssrn.com/s0l3/papers. cfm?abstract_id=l323525 (last accessed January 28, 2010). 

31 See Amy Kapczynski's discussion on the gravitational pull and discursive effects that law 



A FIELD OF ACTIVISM 



exerts on framing processes in "The Access to Knowledge Mobilization and the New Politics 
of Intellectual Property," pp. 809-10 and 861-73. 

32 Just as, according to neoliberal views, the market cannot exist "by itself," in nature, there 
cannot be a commons or public goods left free, untouched by rules or regulations. For them 
to exist and be accessible implies that some agent or agency establishes them through an act 
of sovereignty and keeps them free. 

33 The status and the conditions of definition, occupancy, and use of these spaces are grounds 
for discussion and vary greatly depending on the model proposed, whether it is patent pools, 
Creative Commons licenses, open source collaboration, or something else. 

34 Irrespective of debates about the condition or the future of nation-state or of state sover- 
eignty, note that our discussion concerns the state because, even if its mode of operation and 
its relations with other social actors change over time, it currently represents the dominant 
model of governing and of power. Such a focus by no means denies the possibility that com- 
peting or alternative governing forms may emerge. 

35 However, the existence of these power relations raises the question of what it is that the 
A2K movement excludes or truncates, besides its capacity to welcome issues and individuals. 
The essays by Carlos Correa, "Access to Knowledge: The Case of Indigenous and Traditional 
Knowledge," and Jeff Atteberry, "Information/Knowledge in the Global Society of Control: 
A2K Theory and the Postcolonial Commons," in this volume, provide elements to reflect on 
this issue, notably on the issue of traditional knowledge. 

36 See Gaelle Krikorian, "Fabrication non gouvernementale de traites internationaux: Entretien 
avec James Love," Vacarme 34 (Winter 2006): p. 102, available on-line at http://www. 
vacarme.org/article537html (last accessed January 29, 2010). To refuse to define oneself with 
regard to one's enemy bears in itself an attempt to question the use of the term "intellectual 
property." Scholars and activists have discussed the conceptual effect of imposing this term 
to designate, under one appellation, copyright, patents, trademarks, industrial design and 
undisclosed information. The term was manufactured and imposed as an ideological vehicle 
by the movement of private interests promoting exclusive rights. See James Boyle, "The Sec- 
ond Enclosure Movement and the Construction of the Public Domain." The common use of 
the term "intellectual property" disseminated the notion of embedding forms of knowledge 
in the realm of physical property. See Richard M. Stallman, "Did You Say 'Intellectual Prop- 
erty'? It's a Seductive Mirage," available on-line at http://www.gnu.org/philosophy/not-ipr. 
html (last accessed January 29, 2010). Stallman argues because of the fact that copyright, 
patent, and trademark laws are very different from property laws, the use of the term "intel- 
lectual property" creates an artificially coherent category. This is why some groups are cam- 
paigning for the term to be abandoned. 

37 Kapczynski, "The Access to Knowledge Mobilization and the New Politics of Intellectual 
Property," pp. 804-85. 

38 In doing so, their approach tends to differ from, for example, controversies over patents or 
criticisms that were made during the eighteenth and nineteenth centuries by Adam Smith, 
Thomas Jefferson, or Thomas Babington Macaulay. These focused on the effects of exclusive 
rights and monopolies and as such contemplated possibilities mostly from within this system. 
See Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," 
p. 57 Meanwhile, contrary to what was assumed about property rights in the eighteenth or 
nineteenth centuries, the A2K movement cannot count on the then commonplace view that 



92 KRIKORIAN 



intellectual property rights, while they are needed, also have to be controlled, limited, and 
sometimes abrogated. 

39 This does not mean that A2K advocates are not keen to organize the theatrical and unequiv- 
ocal public condemnation of corporate industries and to capitalize on these campaigns to 
increase their own political power, the same way that groups from the environment move- 
ment do. To take only one recent example among many, consider the AIDS activist protest 
campaign outside the headquarters of Roche in September 2008, "Roche: Feasting on Our 
Dead Bodies," depicting the pharmaceutical company as a hyena and stating in French, "If 
you have a monopoly, you don't need to be human." See http://www.flickr.com/photos/ 
hughes_leglise/2909698636 (last accessed January 29, 2010). 

40 Nancy Fraser, "Rethinking the Public Sphere: A Contribution to the Critique of Actually 
Existing Democracy," in Craig Calhoun (ed.), Habermas and the Public Sphere (Cambridge, 
MA: The MIT Press, 1992), p. 123. 

41 In this, too, it distinguishes itself from the identity-based and minoritarian movements that 
have been described as being "new social movements." 

42 Nancy Fraser and Axel Honneth, Redistribution or Recognition?: A Political-Philosophical 
Exchange (New York: Verso, 2003). 

43 Antonella Corsani, "Knowledge Production and New Forms of Political Action: The Experi- 
ence of the Intermittent Workers in France," trans. Timothy S. Murphy, available on-line at 
http://transform.eipcp.net/transversal/0406/corsani/en/#sdfootnotel3anc (last accessed 
January 29, 2010). 

44 Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (New 
York: Penguin, 2004), p. 105. 

45 Hannah Arendt, On Revolution (New York: Penguin Books, 1985), p. 19. 

46 Michel Feher, Gaelle Krikorian, and Yates McKee (eds.), Nonovernmental Politics (New York: 
Zone Books, 2007), p. 14. 

47 Ibid., pp. 14 and 26. 

48 Ibid., p. 17 

49 James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven, CT: 
Yale University Press), p. 2. 

50 Gilles Chantraine and Olivier Ruchet, "Dans le dos du pouvoir: Entretien avec James C. Scott" 
Vacarme 42 (Winter 2008), available on-line at http://www.vacarme.org/articlei49i.html 
(last accessed January 30, 2010). See also Scott, Domination and the Arts of Resistance. 

51 A crisis situation certainly favors the questioning of the legitimacy of the state and its poli- 
cies. See Pierre Bourdieu, Pascalian Meditations, trans. Richard Nice (Cambridge: Polity, 
2000), p. 178. 

52 See Lawrence Liang, "Beyond Representation: The Figure of the Pirate," in this volume. 

53 See for instance Amartya Sen, "Equality of What," in Robert E. Goodin and Philip Pet- 
tit (eds.), Contemporary Political Philosophy: An Anthology (Oxford: Blackwell, 1997), pp. 
476-86. Of course, the choice of the terms used to frame the discussions is not neutral or 
meaningless, and to use a rhetoric of rights, of needs, or of positive freedom corresponds to 
different political conceptions or strategies. Within the A2K movement, such claims coexist 
without one dominating the others — yet. 

54 Pierre Bourdieu and Alain Darbel, L Amour de Part: Les musees d'art europeens et leur public 
(Paris: Editions de Minuit, 1969), p. 157; available in English as The Love of Art: European Art 



A FIELD OF ACTIVISM 93 



Museums and Their Public, trans. Caroline Beattie and Nick Merriman (Cambridge: Polity, 1991). 

55 These interviews were conducted by Consumers International in the context of a study car- 
ried on in Thailand and finalized in 2006 in the Project on Copyright and Access to Knowledge. 
See http://www.idrc.ca/en/ev-67263-20i-l-DO_TOPIC.html (last accessed January 31, 2010). 

56 Bourdieu, Pascalian Meditations, p. 178. 

57 This is also a common tactic of political leaders, lately excessively used by the right wing 
in France, for example: putting the blame for people's social and economic difficulties on 
scapegoats (immigrants, poor) and/or obstacles or enemies (the poor who are unionized, for 
instance) whom the dominant power wants to eliminate politically. See Mona Chollet, Reves 
de droite: Defaire I'imaginaire sarkozyste (Paris: Zones, 2008), pp. 41 and 93. 

58 Scott, Domination and the Arts of Resistance , p. 183. 

59 Chantraine and Ruchet, "Dans le dos du pouvoir: Entretien avec James C. Scott." 

60 Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," p. 8. 
We can see an evolution in the functioning of capitalism: for instance, enrichment is not 
solely based on the physical appropriation of resources and the means of production and 
capitalism is increasingly based on the allocation and transfer of credit, not on the produc- 
tion and sale of goods. (For a discussion of entrepreneurial neoliberalism and the functioning 
of capitalism, see the analysis developed by Michel Feher in Vacarme, starting in Vacarme 51 
[Spring 2010] and continuing in the following issues). However, at the base of this system and 
in the distribution of social positions that it produces still remains the ownership of property, 
be it only the potential to own: Some people are powerful in this system without materially 
possessing capital in the form of property, but for many reasons, they are believed by others 
to retain the capacity to do so. Of course, at the end of the day, "rich" people, even if they 
make use of huge volumes of immaterial assets that they don't in fact possess, in most of the 
cases also own a lot of both tangible and intangible resources. Nevertheless, ownership is 
socially constructed and based on others' perceptions. 

61 Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," p. 3. 
See also Kapczynski, "Access to Knowledge: A Conceptual Genealogy." 

62 Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," p. 3. 

63 See Roberto Verzola's essay "Undermining Abundance: Counterproductive Uses of Technol- 
ogy and Law in Nature, Agriculture, and the Information Sector" in this volume. 

64 See Gaelle Krikorian, "Interview with Yann Moulier Boutang," in this volume. 

65 Lessig, The Future of Ideas, p. 22. 

66 Bourdieu, Pascalian Meditations, p. 178. Such alternatives came into play in what happened 
when the HIV/AIDS crisis contributed to making intolerable the inequalities in access to med- 
icines between rich and the poor countries. 

67 See Liang, "Beyond Representation": "Underlying much of copyright's mythology are the 
modernist ideas of creativity, innovation, and progress. The narrative conjunction of these 
ideas is represented as universal, and indeed, it is shared by both advocates of stronger 
copyright and advocates of the public domain." The differences between creativity, innova- 
tion, and progress and the different political ranges with which they can be associated could 
be discussed. The French pirates, for instance, while they call for the liberation of creation, 
reject the term "innovation," which they assimilate to the notion of progress, as an accept- 
able horizon for their mobilization. 

68 Lessig, The Future of Ideas, p. 14. 



94 KRIKORIAN 



69 Hannah Arendt, "Introduction. Walter Benjamin: 1992-1940," in Walter Benjamin, Illumina- 
tions, ed. Hannah Arendt, trans. Harry Zohn (New York: Schocken, 1968), p. 47. 

70 Doctorow, "Why I Copyfight." 

71 Arendt, "Introduction. Walter Benjamin: 1992-1940," p. 43. 

72 Eric Fassin, "Same Sex, Different Politics: 'Gay Marriage' Debates in France and the United 
States," Public Culture 13, no. 2 (Spring 2001): p. 215. 

73 See Correa, "Access to Knowledge: The Case of Indigenous and Traditional Knowledge" and 
Atteberry, "Information/Knowledge in the Global Society of Control: A2K Theory and the 
Postcolonial Commons," in this volume. 

74 Fassin, "Same Sex, Different Politics," p. 215. 

75 Ibid. 

76 Lessig, The Future of Ideas, p. 13. 

77 Brown, "Neoliberalism and the End of Liberal Democracy," p. 43. 

78 See Liang, "Beyond Representation," in this volume. 

79 See The Take (2004), a documentary directed by Avi Lewis and Naomi Klein. 

80 Hardt and Negri, Empire (Cambridge, MA: Harvard University Press, 2000), p. 406. 

81 Carlos Menem, quoted in The Take. 

82 Jeremy Rifkin, The Age of Access: The New Culture of Hypercapitalism, Where All of Life is a 
Paid-for Experience (New York: J. P. Tarcher/Putnam, 2000). For a discussion of the condition 
of neoliberalism and the role of the issue of access, see the analysis developed by Michel 
Feher in Vacarme, starting in Vacarme 51 (Spring 2010) and continuing in the following issues. 

83 Pirates, for example, challenge the merging of economic and security issues as established by 
neoliberalism. See Wendy Brown, "Souverainete poreuse, democratic muree," Revue Inter- 
nationale des livres et des idees, no. 12 (July 2009). They also undertake practices of freedom 
that may help erode the culture of fear and prudence, and when these practices rest on trans- 
formative production, they can offer fruitful routes to opening breaches in dominant repre- 
sentations. 

84 See Rifkin, The Age of Access. 

85 Maurizio Lazzarato, "Immaterial Labor," trans. Paul Colilli and Ed Emory, in Michael Hardt 
and Paolo Virno (eds.), Radical Thought in Italy: A Potential Politics (Minneapolis: University 
of Minnesota Press, 1996), p. 147, available online at: http://www.generation-online.0rg/c/ 
fcimmateriallab0ur3.htm. 

86 Hardt and Negri, Empire, p. 410. 

87 Immanuel Wallerstein, The Decline of American Power: The U.S. in a Chaotic World (New 
York: The New Press, 2003). 

88 In the course of the conversations that unfold through the act of sharing in the knowledge 
society, even one's relationship to the self and the other is revisited. See Lawrence Liang's 
essay "The Man Who Mistook His Wife for a Book" in this volume. 



A FIELD OF ACTIVISM 95 



PART TWO 



THE EMERGENCE OF THE POLITICS OF A2K 



How do you say A2K? 



Access to Knowledge • Acesso ao Conhecimento • Dostep 
do wiedzy • Acceso a los Conocimientos • Acceso al 
Conocimiento • Acces au savoir • SliRffclK * Sifuna ulwazi • 
np6o|3aar| oth rvwari ■ Adgang til kundskab • Adgang til 
viden • Ona Ogbpn ati Oye * Zugang zu Wissen ■ flocTyn 
,qo 3HaHb • ii^A ^S JjL-a j» • flodyn k 3HaHWHM • Toegang 
tot Kennis • Klic k vedeni • Tilgang til kunnskap • Waniko 
yeruzivo * flocTtn #o 3naHt/ia • Pristup znanju * npwciyn 
znatby • npwcTan ao 3Haetbe • Acces a la connaissance • 
U swikelela ndivho • QnopGnb bo<^anb^3Qgnacn&s * Teacht ar 
eolas • Rok no and • Accesso alia conoscenza • BHJ1MM 
AnwrA >KETMLUee * Arivukkaana Vaaipu * Komunikimi 
me dijen • ^TC 7 ?? <5ics?J ^JW 6 ! • Denumata Praveshaya • 
Katamelletso ho Tsebo ■ Dostop do Znanja ■ Ukufinyelela 
ulwazi • snssgJiSR&satsHs ■ Gye nyansa ■ Kuva nemukana 
wekuwana ruzivo ■ Kufinyelela Elwatini ■ Teise zinoti ■ 
Toegang tot inligting • niuceitfefygioiul • Njira ya tsopano 
yopezera chidziwitso • Hebbaade gandal *Hunes e mand • 
Acces aux connaissances • Dugg buntu xamxam • Puleleho 
tsebong • Monyetla wa ho ithuta • Ukufikeleleka Kulwazi * 
Ukufinyelela Olwazini • Kufikelela kutiva • Okufuna okumanya 



How do you make it happen? WIPO/IIM, June 20-22, 2005 Be There! 
www.tacd.org • www.cptech.org/a2k 



CPTech (now known as Knowledge Ecology International) and elFL organized a collaborative effort to 
translate "How do you say A2K?" into many languages on the A2K listserve. The design was used for 
T-shirts and posters by several groups involved in the A2K campaign. 



The Emergence of the A2K Movement: 
Reminiscences and Reflections 
of a Developing-Country Delegate 



Ahmed Abdel Latif 



As long as lions do not have their historian, hunting stories and tales will always be 

to the glory ot the hunter. 

—African proverb from Bernard Njonga, Le poulet de la discorde 

Since their emergence on the international scene, developing countries have sought 
to reform and adapt global rules regulating the generation and dissemination of 
knowledge to take into consideration their specific socioeconomic circumstances 
and levels of development. Their participation in what is now known as the access 
to knowledge (A2K) movement is part of their effort to achieve this objective. 

In this context, my assignment to the Permanent Mission of Egypt in Geneva 
(2000-2004), which was to follow intellectual property (IP) issues, first at the 
World Intellectual Property Organization (WIPO) and then also at the World Trade 
Organization (WTO), led to my involvement in the formation of the A2K move- 
ment. The following is thus an account of this process from the viewpoint of a 
Geneva-based delegate of a developing country. It aims to be a contribution to the 
narrative of the genesis of the A2K movement, rather than a definitive account of 
a process in which many different actors, in particular academics and civil-society 
activists, were also actively involved. This account focuses on developments and 
initiatives that took place in Geneva-based international forums and organizations, 
particularly at WIPO, that played an important structuring role in the emergence 
of A2K as a movement and in the framing of A2K as a concept. 

GLOBAL INTELLECTUAL PROPERTY DEBATES! A2K IN HISTORICAL CONTEXT 
FROM THE PERSPECTIVE OF DEVELOPING COUNTRIES 

Intellectual property rights have become the predominant framework for regulat- 
ing the generation, dissemination, and use of knowledge. With the globalization 



99 



of intellectual property rights and the expansion of the scope in intellectual prop- 
erty protection, the main institutions involved in international deliberations and 
rule making on intellectual property issues, particularly the WTO and WIPO, have 
acquired unprecedented importance. It is thus not surprising that recent efforts by 
developing countries aiming at adapting and reforming rules regulating knowledge 
have been centered on these two organizations. 

In this regard, it is important to recall that, already in the 1960s and 1970s, 
developing countries had sought to reform the main international conventions in 
the area of intellectual property, such as the Berne Convention for the Protection 
of Literary and Artistic Works (1886) on the protection of copyright and the Paris 
Convention on the Protection of Industrial Property (1883), with a view toward 
making these instruments more responsive to developing countries' socioeconomic 
needs in terms of access to educational material, scientific knowledge, and tech- 
nology. These attempts did not result in the expected reforms pursued by develop- 
ing countries and have progressively fallen into oblivion. 1 

The conclusion of the 1994 WTO Trade-Related Aspects of Intellectual Property 
Rights Agreement (the TRIPS Agreement) brought many of these concerns back 
to the surface, because for developing countries, it represented a landmark devel- 
opment in the process of strengthening intellectual property rights at the global 
level. TRIPS globalized new rules with an important bearing on the dissemination 
of knowledge, such as the extension of patent protection to pharmaceutical prod- 
ucts and the protection of computer programs (software) by copyright. TRIPS also 
laid down minimum standards for the enforcement of intellectual property rights, 
and it came under the aegis of the WTO dispute settlement system, which could be 
used in cases of noncompliance, features that were lacking in existing intellectual 
property agreements under WIPO. 2 A powerful discourse accompanied the conclu- 
sion of TRIPS, arguing that strengthened intellectual property protection in devel- 
oping countries would promote innovation and lead to increased flows of invest- 
ment and technology transfers. 3 

Furthermore, after the adoption of TRIPS, developed countries quickly sig- 
naled their determination to pursue the establishment of new intellectual property 
standards further, beyond the minimum standards contained in the TRIPS Agree- 
ment ("TRIPS-plus" standards). 

These TRIPS-plus standards promoted by developed countries resulted either 
from norm-setting activities in WIPO or from intellectual property chapters in 
bilateral and regional free-trade agreements, 4 which often required adherence to 
WIPO instruments such as the 1996 Internet Treaties. These treaties strengthened 
copyright protection in the digital environment, establishing new obligations in an 
area that was not specifically addressed by the TRIPS Agreement. The 1999 WIPO 



ABDEL LATIF 



Digital Agenda promoted adherence to these treaties in the context of efforts to 
grapple with the challenges to traditional copyright protection brought by the 
Internet and information and communication technologies. 5 The European Union, 
which had adopted a sui generis regime for the protection of nonoriginal data- 
bases, was pressing for the adoption of a similar regime of protection in the con- 
text of WIPO's Standing Committee on Copyright and Related Rights. 

Alongside this evolving landscape, a campaign for access to medicines 
emerged and gained significant momentum with the defeat of a lawsuit brought 
by thirty-nine pharmaceutical companies against the South African government 
in 1998, culminating with the adoption of the 2001 Doha Declaration on TRIPS and 
Public Health. 6 

For many of the actors involved in this mobilization, including developing 
countries, this campaign was extremely effective in addressing the impact of the 
newly globalized intellectual property standards on public health and in firmly 
putting the issue of patents and access to medicines on the global agenda. It was 
often cited as exemplary in the way it framed the issue, attracted public atten- 
tion, and forged a coalition made of developing countries (including Brazil, India, 
and the African Group) and of civil-society and nongovernmental organizations 
(NGOs) such as Medecins Sans Frontieres (MSF), the Consumer Project on Tech- 
nology (CPTech, now Knowledge Ecology International), and the Third World Net- 
work, in addition to public-health grassroots organizations in developing countries 
such as South Africa, Thailand, and Brazil. 7 

During the access-to-medicines campaign, a collaboration developed between 
negotiators from developing countries, particularly Geneva-based ones, and 
several of the most active NGOs, which often provided these negotiators with 
information, legal analysis, and technical support. 8 Developing countries, on the 
other hand, articulated positions that coincided with the public-policy concerns 
advanced by many of these NGOs. The achievement of a more development- 
oriented intellectual property system that would be supportive of public health 
was a common objective of both the developing countries and the NGOs repre- 
senting civil-society consumers and patients. This convergence of interests and 
strategies was most effective in the deliberations leading to the adoption of the 
Doha Declaration. 

In terms of its wording, the Doha Declaration on TRIPS and Public Health was 
a significant development in global deliberations on intellectual property because 
its formulations embodied a balanced approach to intellectual property protec- 
tion that contrasted with the maximalist intellectual property discourse that was 
prevalent until that time. For many developing countries, this balanced and pow- 
erful message had a wider significance beyond the WTO, because it signaled the 



THE EMERGENCE OF THE A2K MOVEMENT 



importance of implementing intellectual property protection in a manner that is 
supportive of public-policy objectives. 

Soon after the adoption of the Doha Declaration, the influential report of 
the UK Commission on Intellectual Property Rights (CIPR) was released in Sep- 
tember 2002. 9 The report underlined the need to achieve a more balanced inter- 
national intellectual property system that would not be based on a "one size fits 
all" approach and that would take into consideration the different needs of coun- 
tries, as well as their different levels of development. It emphasized that "access 
to books and learning materials is still a real problem in many developing coun- 
tries." 10 The report invited developing countries to improve access to copyrighted 
works and to achieve their goals for education and knowledge transfer by adopting 
measures fostering competition under copyright laws, as well as by maintaining 
or adopting broad exemptions for educational, research, and library uses in their 
national copyright laws. 11 

The CIPR report had a significant impact in intellectual property and develop- 
ment circles for several reasons: 12 the creation of the CIPR came at the initiative of 
a developed country, the United Kingdom; the commission's membership included 
a number of prominent experts from both developing and developed countries, 
as well as representatives of industry and academia, and the commission's report 
contained many recommendations that addressed pressing policy issues with 
which most countries, particularly developing countries, were confronted in inter- 
national forums and processes. 13 

More importantly, in terms of its content, the CIPR report captured very accu- 
rately a growing trend of opinion that distanced itself from both a maximalist dis- 
course that promoted the absolute benefits of intellectual property and a discourse 
that was unequivocally critical of intellectual property as a matter of principle. It 
thus recognized both the benefits and costs of intellectual property protection, 
emphasizing the need to ensure that the costs do not outweigh the benefits, par- 
ticularly for developing countries. 

In many instances, the report echoed several of the criticisms lodged by devel- 
oping countries against the international intellectual property system and the 
TRIPS Agreement. Furthermore, the report contained the first direct criticism of 
WIPO's orientations to be advanced in international policy debates beyond spe- 
cialized circles of intellectual property scholars and NGOs. 14 In this regard, the 
report underlined that WIPO "should give explicit recognition to both the benefits 
and costs of IP protection" and "should act to integrate development objectives 
into its approach to the promotion of IP protection in developing countries." 15 

The publication of the CIPR report coincided with the launch by UNC- 
TAD (the United Nations Conference on Trade and Development) and the ICTSD 



ABDEL LATIF 



(International Centre for Trade and Sustainable Development) of the Bellagio Dia- 
logues on Development and Intellectual Property Policy with the support of the 
Rockefeller Foundation. These dialogues also pointed to the need to integrate the 
development dimension in the setting of global intellectual property standards. 
The first of these dialogues, in 2002, identified various areas of concern for efforts 
directed toward achieving a more balanced and development-oriented intellectual 
property system, such as dealing with the danger of the further harmonization of 
intellectual property rights laws calibrated on the high standards being promoted 
by developed countries, 16 the dangers posed by the promotion of TRIPS-plus stan- 
dards, and the importance of building capacity for self-development in developing 
countries. 17 From 2002 to 2005, the Bellagio Dialogues brought together key intel- 
lectual property negotiators, experts, and representatives of civil society. Several of 
their recommendations, which converged with those of the CIPR report, influenced 
developments in global policy forums and deliberations on intellectual property 18 

More generally, the backlash against the "roaring" nineties and against the 
categorical assumptions and assertions about the absolute benefits of economic 
globalization was in full swing. A more nuanced discourse on globalization from 
the Global North and the Global South was emerging and gaining ground on the 
international scene. 19 



FROM ACCESS TO MEDICINES TO A2K 

All these developments induced a number of like-minded Geneva-based repre- 
sentatives of developing countries (from Argentina, Brazil, Egypt, and India) to 
believe that the debate should move beyond TRIPS and public health to address 
other substantive areas where global intellectual property rules had a significant 
impact on public-policy objectives of importance to developing countries, such as 
access to educational material and scientific knowledge. The copyright issue, for 
instance, had been the sleeping giant in the debate on intellectual property in the 
1990s. Concerns had appeared regarding the impact of the WIPO Internet Treaties 
and the legislation implementing them — such as the U.S. Digital Millennium Copy- 
right Act — on access to information and fair use in the digital environment . 

A shared conviction emerged among them that the most effective way to mobi- 
lize on these issues was to replicate the elements that had proven successful in the 
access-to-medicines campaign, especially the focus on careful framing of the issue 
and on building a coalition that would include developing countries, as well as NGOs. 

However, the prospects for such a mobilization seemed uncertain in 2002. The 
clusters of issues around knowledge and information lacked the emotional impact 
and sense of urgency that characterized the patents-and-medicines debate. Access 



THE EMERGENCE OF THE A2K MOVEMENT 103 



to medicines, particularly life-saving HIV drugs, is a matter of immediate human 
survival. It has a compelling humanitarian dimension that is more difficult to 
establish in issues relating to knowledge and information. 

At the same time, many developing countries were wary of opening a new 
front that could be construed as a more general contestation of the international 
intellectual property system, in contrast with the more limited and pointed mobili- 
zation on the patents-and-medicines issue. Issue-based actions and mobilizations 
were more likely to succeed, in their experience, than a frontal and systematic 
opposition. Furthermore, deliberations were still taking place at the WTO on para- 
graph 6 of the Doha Declaration on TRIPS and Public Health concerning the situa- 
tion of countries that lacked manufacturing capacities in the pharmaceutical sector. 

With their limited capacities and expertise, many developing countries relied 
on their Geneva-based representatives to articulate their positions in many techni- 
cal discussions relating to trade and intellectual property discussed in Geneva, and 
thus it was difficult for these countries to be engaged simultaneously in in-depth 
negotiations on intellectual property matters in different forums. 20 In addition, 
many developing countries faced coordination problems, because they often had 
separate representations to the United Nations and the WTO, or even within the 
same mission, different persons were assigned to follow WTO TRIPS issues and 
UN agencies such as WIPO. 21 With regard to NGOs, many of those involved in the 
access-to-medicines campaigns continued to focus mostly on the TRIPS and pub- 
lic-health issue and were still devoting much of their resources and organizational 
capabilities to it. 22 Finally, while the WTO was clearly the forum in which to act on 
the issue of patents and medicines because the TRIPS Agreement had extended 
patent protection to pharmaceutical products, WIPO appeared to be the appropri- 
ate forum where the more general debate on the regulation of global knowledge 
was to be raised, particularly in view of the new intellectual property standards 
being advanced by developed countries at WIPO. 

Indeed, discussions were taking place at WIPO on a new treaty to protect 
broadcasting organizations in the digital environment, as well as on a new treaty 
to harmonize substantive patent law. WIPO's centrality in shaping the global intel- 
lectual property discourse, particularly in developing countries, was becoming 
manifest, as well as its role in the implementation of the TRIPS Agreement through 
its technical-assistance programs and legislative advice in the context of the 1995 
WIPO-WTO agreement on technical cooperation, 23 as well as the 1998 WIPO-WTO 
joint initiative on technical cooperation for developing countries and the 2001 joint 
initiative for least-developed countries. 24 

At that time, WIPO was still perceived as a technical organization and was 
relatively unknown to the larger public and to many activists, academics, and 



104 ABDEL LATIF 



NGOs involved in intellectual property debates, which focused mostly on the 
TRIPS Agreement. The majority of the recent literature on intellectual property 
and development also had concentrated nearly entirely on the TRIPS Agreement 
and its implications. Furthermore, there was some skepticism, including among 
some experts and negotiators who had been involved in the TRIPS and public- 
health negotiations, regarding the possibility of bringing any significant change or 
reforms to WIPO. The organization was perceived as predominantly influenced by 
developed countries and owners of intellectual property-rights, particularly in the 
area of norm setting, a perception reinforced by the fact that WIPO derived nearly 
90 percent of its revenues from the use by the private sector of its registration sys- 
tems, most notably the Patent Cooperation Treaty 25 

As for developing countries, while they had built expertise in engaging with 
WTO and TRIPS issues, their knowledge of WIPO processes remain limited, as did 
their participation in the organization's standard-setting activities. 26 The linkages 
between the discussions on TRIPS at the WTO and the deliberations at WIPO were 
not evident for most of them. Few developing countries were actively engaged in 
both forums. 27 



THE FORMATION OF THE A2K MOVEMENT 

Some NGOs shared the views on the need to engage more actively in WIPO pro- 
cesses. 28 CPTech was one of them. In fall of 2002 and early 2003, discussions took 
place between James Love, the director of CPTech, and a number of like-minded 
Geneva based delegates from developing countries on the means to pursue such 
a greater engagement. Love subsequently played an important role in providing 
much-needed links between developing countries, civil-society groups, and aca- 
demia based in the North, particularly in the United States, which had been mobi- 
lized for a number of years on domestic issues relating to copyright, knowledge, 
and information, in particular in the context of the implementation of the Digital 
Millennium Copyright Act. CPTech started increasingly to focus its advocacy on 
WIPO's mission and role in order to raise public interest in its activities and its 
approach to intellectual property protection. An important stage was set for the 
coming together of the forces behind the A2K movement. 

THE WORLD SUMMIT ON THE INFORMATION SOCIETY 

However, there was still the need for opportunities that would act as a catalyst in 
forging a new coalition on the regulation of knowledge. One of them came inad- 
vertently in the form of the World Summit on the Information Society (WSIS). 
In 2001, the United Nations General Assembly approved a proposal by the 



THE EMERGENCE OF THE A2K MOVEMENT 105 



International Telecommunications Union to hold the WSIS in two parts: the first 
part in Geneva in December 2003, and the second part in Tunisia in November 
2005. The objective of the summit was to discuss the new challenges and oppor- 
tunities created by the digital revolution and the role of information and com- 
munication technologies in improving living standards, achieving the UN Millen- 
nium Development Goals, 29 and bridging the digital divide between countries and 
within societies. 30 

The Geneva phase of the summit aimed at formulating the political vision to build 
the information society and the practical steps to achieve this objective. The Prepa- 
ratory Committee convened on three occasions in preparation of this first phase (in 
July 2002, in February 2003, and in September, November, and December 2003). 

A number of controversial issues started to appear in the deliberations of the 
Preparatory Committee, such as the role of the media, freedom of expression, 
Internet governance, and financing. After the February 2003 meeting, intellectual 
property also emerged as one of the divisive issues in the deliberations. Delegates 
with expertise in information and communication technologies who had been 
mostly representing developing countries in these meetings were ill-equipped to 
handle such controversial matters. This prompted the more active involvement of 
a number of Geneva-based missions from developing countries in the negotiations, 
particularly on intellectual property issues. 

During the negotiations, developed countries and the private sector insisted 
that intellectual property protection is "essential in the Information Society" and 
that "existing IP regimes and international agreements should continuously pro- 
vide this protection . . . thus promoting the necessary balance between owners 
and users of IP" 31 On the contrary, developing countries and many NGOs stressed 
that the continuous expansion in intellectual property protection could negatively 
affect creativity and the dissemination of information. In addition, they opposed 
the inclusion of language that claimed that international intellectual property 
agreements were "balanced" or "promoting the necessary balance," particularly in 
view of the numerous criticisms made at the TRIPS Agreement discussions in this 
respect. After long and tortuous negotiations, a paragraph on intellectual prop- 
erty that represented a compromise formulation was included in the WSIS Geneva 
Declaration of Principles, the political declaration adopted by the summit. It states 
that: "IP protection is important to encourage innovation and creativity in the 
Information Society; similarly, the wide dissemination, diffusion, and sharing of 
knowledge is important to encourage innovation and creativity. Facilitating mean- 
ingful participation by all in intellectual property issues and knowledge sharing 
through full awareness and capacity building is a fundamental part of an inclusive 
Information Society" 32 



106 ABDEL LATIF 



Intellectual property protection thus is described in this paragraph only as 
"important" in the information society, and not as "essential," as first advocated 
by the developed countries and the private sector. In addition, placing intellec- 
tual property protection and the dissemination of knowledge on an equal footing 
implied, from the view point of the developing countries and the NGOs, that intel- 
lectual property protection might not always necessarily achieve the dissemina- 
tion of knowledge, particularly if it is not balanced and supportive of public-policy 
objectives. 

As it is usually the case on intellectual property matters, Brazil was the most 
active developing country in these negotiations, particularly regarding the word- 
ing of the first sentence of the paragraph, where intellectual property and the 
dissemination of knowledge were placed on an equal standing. African countries 
were insistent on the references to participation and capacity building in the sec- 
ond sentence of the paragraph. 

Apart from the issue of intellectual property, developing countries and many 
NGOs were also keen to raise the larger issue of access to information and knowl- 
edge in the context of the world summit. 33 Ultimately, this issue was included in 
the WSIS Geneva Declaration in the section on principles governing the informa- 
tion society under the title "Access to information and knowledge." This was the 
first time, to my knowledge, that the terms "access to information and knowl- 
edge" appeared in official UN documents as the result of negotiations between 
governments. 

In this regard, the WSIS Geneva Declaration states that the "sharing and 
strengthening of global knowledge for development can be enhanced by remov- 
ing barriers to equitable access to information . . . and by facilitating access to pub- 
lic domain information" (paragraph 25). The declaration further highlights that "a 
rich public domain is an essential element for the growth of the Information Soci- 
ety" (paragraph 26). It mentions that "access to information and knowledge can 
be promoted by increasing awareness among all stakeholders of the possibilities 
offered by different software models, including proprietary, open-source and free 
software" (paragraph 27). It also aspires to "promote universal access with equal 
opportunities for all to scientific knowledge and the creation and dissemination of 
scientific and technical information, including open access initiatives for scientific 
publishing" (paragraph 28). 

Retrospectively, the WSIS appeared as a landmark development for the emerg- 
ing A2K movement, because the movement succeeded, for the first time, in includ- 
ing A2K concerns in a major policy document that was endorsed by heads of state 
and governments. The references to the role of the public domain as a necessary 
element for the growth of the information society, to the importance of raising 



THE EMERGENCE OF THE A2K MOVEMENT 107 



awareness about the possibilities offered by different models of software, includ- 
ing free and open-source software, and to open-access initiatives in the area of 
scientific publication were groundbreaking from this perspective. These same ele- 
ments would later be raised by developing countries and NGOs in WIPO. 

The WSIS discussions reinforced the conviction of those in the nascent A2K 
movement that multilateral deliberations represented the most appropriate venue 
for them to reach relatively balanced formulations and views on intellectual prop- 
erty protection. Indeed, the multilateral setting provides developing countries 
with an equal opportunity to put forward their positions and points of view and 
to shape outcomes, in contrast, for instance, with bilateral or plurilateral processes 
such as the negotiation of free-trade agreements, where they are often faced with 
the overwhelming weight of developed countries, particularly in the economic and 
trade areas. 

ENCAGING WIPO 

In this regard, another event occurred in 2003 that was important in the formative 
stage of the A2K movement. A group of prominent public figures, scientists, and 
academics, including Nobel Prize winners Joseph Stiglitz, Sir John Sulston, and 
Harold Varmus, addressed an open letter to the director general of WIPO in July 
2003 requesting him to convene a meeting in 2004 to examine new open, collabora- 
tive development models such as the Humane Genome Project and open academic 
and scientific journals. The letter stated that "these models provided evidence that 
one can achieve a high level of innovation in some areas of the modern economy 
without intellectual property protection, and indeed [that] excessive, unbalanced, 
or poorly designed intellectual property protections may be counter-productive." 34 

Commenting on the matter, a U.S. official was quoted in the media affirming 
that "open-source software runs counter to the mission of WIPO, which is to pro- 
mote intellectual property rights," adding that "to hold a meeting which has as its 
purpose to disclaim or waive such rights seems to us to be contrary to the goals of 
WIPO." 35 This comment triggered a strong reaction in the United States, particu- 
larly among academics and civil-society groups, because many open-source col- 
laborative models use copyright. However, the incident equally shed light on the 
narrow manner in which WIPO's mandate was construed by its single most influ- 
ential member and the implications this carried for the organization's activities and 
its approach to intellectual property, which it seemed to consider an end in itself, 
rather than a means to achieve the public-policy goals of the generation and dis- 
semination of knowledge. 

Shortly after, a meeting with the title "WIPO's Work Programme and How 
to Involve Consumers" was organized by the Trans Atlantic Consumer Dialogue 



108 ABDEL LATIF 



Special Group on Intellectual Property, in Lisbon in October 2003. 36 I was the only 
Geneva-based developing-country delegate participating in this meeting. The 
meeting was the first of its kind in recent years to address WIPO's mandate and 
activities from the perspective of NGOs and consumers. Although this meeting 
did not attract the same media coverage as the letter previously mentioned, it sig- 
naled that WIPO's activities and its narrow approach to intellectual property were 
beginning to become the subject of increased attention by civil-society groups 
and NGOs. 

As a further reflection of this evolution, the first policy paper focusing exclu- 
sively on WIPO was published in 2003 by the Quaker United Nations Office in 
Geneva and the Quakers International Affairs Programme, based in Canada. 37 The 
paper developed a number of views, building on the CIPR report and arguing that 
WIPO's mandate should not be narrowly limited to the "promotion of IP," as stated 
in the 1967 Stockholm Convention establishing it, but should be properly con- 
strued in the context of the 1974 agreement with the UN by virtue of which WIPO 
became a UN specialized agency. Under Article 1 of that agreement, the "UN recog- 
nized WIPO as its specialized agency with the responsibility for taking appropriate 
action in accordance with its basic instrument ... to promote creative intellectual 
activity" — not intellectual property. The paper also emphasized that WIPO, as a 
UN agency, should fully integrate and mainstream the development dimension 
into its activities, as was done in the rest of the UN system. 

In September 2003, the second UNCTAD-ICTSD Bellagio Dialogue on Develop- 
ment and Intellectual Property Policy identified a number of priority areas for the 
reformist intellectual property agenda, with a specific mention of one of WIPO's 
initiatives, the WIPO Patent Agenda. 38 It thus referred to "challenging the insti- 
tutional framework in which intellectual property policy is developed . . . including 
opposition to moves to harmonize the patent regime, such as through WIPO's Pat- 
ent Agenda." The meeting also addressed important priorities of the A2K move- 
ment, such as "supporting the consideration and development of complementary 
open models for promoting innovation and affordable access to technologies in 
developing countries, including open source and other collaborative approaches." 39 

By the end of 2003, NGOs and civil-society groups had begun to participate 
more actively in WIPO meetings. Until then, NGO representation in these meet- 
ings was almost exclusively limited to representatives of rights holders' organi- 
zations that, in general, favored an increase in the levels of intellectual property 
protection standards. Public-interest NGOs and civil-society groups had been vir- 
tually absent from WIPO deliberations. 

This period also witnessed an increased participation of developing coun- 
tries in WIPO's norm-setting discussions. The South Centre contributed to this 



THE EMERGENCE OF THE A2K MOVEMENT 109 



process when, beginning in 2002, it started to support developing countries in 
enhancing their participation in WIPO's activities and in coordinating their posi- 
tions. 40 It did so by convening meetings where developing countries could pre- 
pare in advance for WIPO meetings and by providing analytical notes that high- 
lighted the development and public-policy implications of WIPO's deliberations, 
particularly in the area of standard setting, such as on patent harmonization 
and copyright. 

After the Lisbon meeting in 2003, the Trans Atlantic Consumer Dialogue (TACD) 
convened another meeting, "Global Access to Essential Learning Tools," in April 
2004 in New York. 41 The meeting included panels on access to textbooks, academic 
journals, and distance education and software. 

I was invited to participate in this meeting, where I moderated the panel on 
access to textbooks. At that time, apart from being the Egyptian delegate to WIPO, 
I was coordinating the work of the African Group at WIPO, given that since Janu- 
ary 2004, Egypt had assumed this responsibility, which rotates between the mem- 
bers of the group. This task involved presenting the positions of the African Group 
regarding issues discussed at WIPO. It also entailed assisting the group in building 
common positions, taking into consideration differences of views that might arise 
between countries in the group. 

THE GENESIS OF THE TERM "A2K" AND THE FRAMING OF A2K AS A CONCEPT 

At the New York meeting, a side meeting on strategy took place that brought 
together key actors that had been active since 2003 in the WSIS and WIPO pro- 
cesses. While it was clear that a coalition was emerging on a number of issues 
relating to access to knowledge and information, the coalition still lacked a clear 
and distinctive identity. It had a fragmented constituency that was made up of a 
number of disparate groups with a focus on very specific issues that at first glance 
appeared to be not very much related to each other. These groups included oppo- 
nents of greater protection for databases, advocacy groups promoting free and 
open-source software, groups advocating open-access initiatives in the area of sci- 
entific research journals, plus librarians, consumer organizations, and the visually 
impaired promoting greater use of exceptions and limitations to copyright, as well 
as groups promoting the public domain. In addition, a number of developing coun- 
tries such as Brazil, India, Egypt, and South Africa were sympathetic to all or some 
of the demands advanced by these groups. 

A conceptual framework was lacking to bring all these groups and issues 
together under a single banner. There was agreement among these actors that the 
issue of access was central and common in all their efforts and activities. Then the 
question arose: Access to what? 



ABDEL LATIF 



Several recurrent terms were discussed at the New York meeting, such as access 
to "information." On my part, I made a strong plea for the exclusive use of the term 
"access to knowledge" instead, for several reasons. 

First, at the conceptual level, knowledge, rather than information, is at the heart 
of the empowerment of individuals and societies. While information is certainly 
a prerequisite in the generation of knowledge, acquisition of knowledge remains 
the ultimate goal. Knowledge processes information to produce ideas, analysis, and 
skills that ideally should contribute to human progress and civilization. 

Second, "access to knowledge" appeared as the appropriate response to the 
term "knowledge economy" that had been increasingly used, since the end of 
the 1990s, to describe the new, prevailing paradigm that reflected the changes in 
the global economy brought about by globalization and new technologies. Often 
this term was used to promote an expansion in the scope of intellectual property 
rights and to increase the levels of intellectual property protection. Thus, if the 
"knowledge economy" was the new paradigm in the global allocation of wealth 
and resources, then "access to knowledge" became the indispensable other side 
of the coin in order to make the economic globalization process underpinning the 
knowledge economy inclusive and equitable. 

Third, for tactical considerations, I was concerned that the use of the term "infor- 
mation" would be strictly associated with the deliberations of the WSIS process and 
potentially could engulf the emerging coalition in the myriad controversial issues 
that had plagued the WSIS process, such as human rights (freedom of expression), 
media regulation, and privacy. While these issues are close to the concerns of the 
emerging A2K movement, they were not to be, in my opinion, the main focus of the 
advocacy efforts of the movement, because there were many other groups and com- 
munities, in particular human rights groups, that were mobilized around them. This 
doesn't mean that the human rights dimension is not important in the framing of 
A2K. On the contrary, it is imperative to root the A2K concept deeper in the human 
rights regime and discourse, particularly in relation to economic and social rights 
such as the right to health, 42 the right to education, 43 and the "right to take part in 
cultural life and to enjoy the benefits of scientific progress and its applications." 44 

Finally, the term "access to knowledge" possesses a universal appeal and legit- 
imacy that is powerful. While there might be differences about how to achieve 
access to knowledge, the goal would be difficult to oppose in itself. It embodies 
a positive agenda and is not only a "reaction" to trends in expanding intellec- 
tual property protection that the world had witnessed since the 1990s. This was a 
central consideration. 

Indeed, previous efforts by developing countries to reform the intellectual 
property system had confronted it in a frontal manner, tried to act mainly from 



THE EMERGENCE OF THE A2K MOVEMENT 



within the intellectual property system itself, and were ultimately overtaken by 
the ability of the system to maintain the status quo. This had to be avoided. On 
the contrary, it was vital that the emerging A2K movement did not define itself 
exclusively in relation— and even less in opposition— to the intellectual property 
system, but rather that it would work at building a public-policy objective, such 
as had occurred in the case of public health, that the intellectual property system 
could be made to support. The rationale for this was reinforced by the fact that 
access to knowledge is a cross-sectoral issue by its very nature and affects many 
areas, such as science, education, research, and many other public-policy areas. 
Thus, it was important for the A2K movement to expand into the policy debates 
in relation to knowledge, education, science, and research, rather than become 
immediately and exclusively engulfed in the technical discussions of the intellec- 
tual property system. 

These considerations in relation to intellectual property were also central 
for the inclusiveness of the movement and its capacity to reach different stake- 
holders, including, for instance, the private sector. It was clear from issues such 
as increased protection for databases, infringement liability for Internet service 
providers, and the digitalization of books that there was an important part of the 
technology industry, particularly in the United States, that shared some of the 
concerns of the A2K movement and that supported some of its proposals — on 
open standards, for instance. 

However, beyond this initial framing of the A2K concept, its vitality was to be 
reflected in the extent to which other actors from academia, civil-society groups, 
and governments would participate in its further elaboration and development, 
thus ultimately participating in its wider ownership and diffusion, as well. 45 The 
conceptualization of A2K would remain a work in progress, and the contours of its 
agenda should continue to evolve and adapt to the challenges raised by the issues 
in the globalization of knowledge. 

Shortly after my plea for the term "access to knowledge" at the New York TACD 
meeting, the term became increasingly used as the single rallying cry of the move- 
ment. James Love then came up with the term "A2K" as a short brand name, which 
became central in the movement's advocacy efforts. 

THE WIPO DEVELOPMENT AGENDA 

By mid-2004, it was clear that the momentum for seeking change in WIPO was 
gaining strength. NGOs were becoming increasingly active, particularly in the con- 
text of WIPO discussions on the broadcasting treaty. Developing-country partici- 
pation in WIPO's substantive debates had also increased significantly, particularly 
in relation to the proposed Substantive Patent Law Treaty, which raised a number 



ABDEL LATIF 




Balance in the WIPO Development Agenda? 

O OOOOOOOO O O O O G O O O O O O O O 

ooooooooooooooooooo o o __ o o o 

o o o o o o o o o o o o O G o o o o o o o 
o o o o o o o o o o o o o o o o c 

OOOOOOOO o o O O O QOO( 

O O O O O O O O O O O O O O O O c 

O O O O O O O O O G O O O O O O c 

O O O O O O O O O O O O O O O O c 

Hardly. Of the 193 non-governmental organizations (NGOs) eligible 
to attend WIPO's Development Agenda summit, only 24 work explic- 
itly on improving conditions in developing countries. So when WIPO 
holds a meeting about intellectual property in the developing world, 
the groups that actually work there will be outnumbered 7 to 1. 

Th ia jflage is in 
the public domain 

Balance in the WIPO Development Agenda? (Ren Bucholz/Electronic Frontier Foundation). 



of concerns for developing countries in terms of its impact on the flexibilities they 
enjoyed under the TRIPS Agreement. 46 

However, it became increasingly apparent for a number of like-minded repre- 
sentatives of developing countries active in WIPO discussions that all these efforts 
remained fragmented. They started to realize that only a major policy initiative could 
bring change to WIPO and advance all these dispersed efforts. Such an initiative would 
go beyond these efforts to address specific standard-setting proposals for increased 
intellectual property protection being advanced at the organization. It would address 
in a systematic and comprehensive manner the organization's culture in promoting 
intellectual property particularly in the areas of norm setting and technical assistance. 

On a substantive level, the initiative would seek to include many of the pro- 
posals and recommendations that had been put forward on WIPO since 2002, in 
particular, the CIPR report and the outcomes of the UNCTAD-ICTSD Bellagio Dia- 
logues, this in addition to bringing to WIPO the global debate over ideas about 
intellectual property that was taking place outside of it and in which the A2K 
coalition had become an important actor. 

On a procedural level, the initiative was also motivated by the desire to estab- 
lish, for the first time in a long time, a grouping of like-minded representatives 
of developing countries at WIPO who shared the same perspective on intellectual 
property, rather than simply just belonging to the same geographical group. 



THE EMERGENCE OF THE A2K MOVEMENT 113 



Indeed, the initiative relied on geographical groups to steer the work of the 
organization in procedural and substantive matters. However, while these groups 
might be useful in a number of procedural matters, such as allocating the member- 
ship of bodies or electing officials or committee chairs, reliance on them in substan- 
tive matters often made less sense, because in many cases, countries within the 
same group had significantly diverging views on intellectual property 47 Indeed, 
it could be problematic for countries to reach common positions on substantive 
intellectual property negotiations at the international level if their national intel- 
lectual property laws differed significantly and did not grant the same level of 
intellectual property protection. This is the case, for example, in Latin and Central 
America, where the gap is particularly acute, for instance between countries that 
have adopted TRIPS-plus standards as a result of free-trade agreements concluded 
with developed countries such as the United States and other countries that have 
refrained from entering in such agreements. While the practice of having repre- 
sentatives of like-minded groups of developing countries coordinating on specific 
issues was current practice in the WTO TRIPS context, it was not the case at WIPO. 

On their part, civil-society groups had done significant work since 2002 in pre- 
paring the ground through increased advocacy aimed at bringing WIPO into the 
wider public-policy debate. 

The time was thus ripe for bringing such a new initiative forward. At the end 
of August 2004, Brazil and Argentina circulated the proposal for a development 
agenda for WIPO. Egypt joined them, with a group of other countries, to present 
this proposal at the session of the WIPO Assemblies in late September. 48 Egypt's 
adherence to this initiative came in continuity with its important contribution to 
efforts by developing countries to achieve a more development-friendly interna- 
tional trade and intellectual property system. 

Indeed, in the 1980s, Egypt was among the developing countries that resisted 
the inclusion of intellectual property issues in the Uruguay Round of the General 
Agreement on Tariffs and Trade. During the round itself, in 1990, it joined a num- 
ber of developing countries such as Bolivia, Colombia, Peru, Venezuela, Argentina, 
Brazil, Chile, China, Colombia, Cuba, Egypt, Nigeria, Peru, Tanzania, and Uruguay 
in submitting a developing-countries draft text for the intellectual property agree- 
ment that was under negotiation. 49 

Egypt was also among the developing countries that availed themselves of 
the possibility to use the Appendix of the Berne Convention for the Protection of 
Literary and Artistic Works (1971 Paris version), which provided — subject to just 
compensation to the rightful owner — "for the possibility of granting non-exclu- 
sive and non-transferable compulsory licensing in respect of (i) translation for 
the purpose of teaching, scholarship or research, and (ii) reproduction for use in 



114 ABDEL LATIF 



connection with systematic instructional activities, of works protected under the 
Convention." 

In its national legislation implementing the TRIPS Agreement (Law 83 of 2002), 
Egypt had incorporated many of the public-health-related flexibilities of the 
agreement. And while it has concluded a number of free-trade agreements, such 
as the EU-Egypt Association Agreement and the EU-EFTA Agreement, it has suc- 
ceeded to a great extent in avoiding taking on new, extensive TRIPS-plus obliga- 
tions with a bearing on public-policy objectives such as public health. 

A2K AND THE WIPO DEVELOPMENT AGENDA 

Although the WIPO Development Agenda initiative was not only about A2K, 
A2K-related issues were clearly an important component of the proposals and 
ideas that the initiative was seeking to advance. This was reflected in the original 
document containing the development agenda proposal, which included key ele- 
ments and concerns of the A2K movement such as: 

• An indication that adding new layers of intellectual property protection to the 
digital environment would obstruct the free flow of information and scuttle 
efforts to set up new arrangements for promoting innovation and creativity 
through initiatives such as the "Creative Commons." 

• An expression of concern at the ongoing controversy surrounding the use of 
technological protection measures in the digital environment. 

• A reference to the importance of safeguarding the exceptions and limitations 
existing in the domestic laws of member states. 

• A mention of the need to bear in mind the relevance of open-access models for 
the promotion of innovation and creativity in order to tap into the develop- 
ment potential offered by the digital environment and an invitation to WIPO to 
consider undertaking activities with a view toward exploring the promise held 
by open, collaborative projects to develop public goods, as exemplified by the 
Human Genome Project and open-source software. 

• A reference to the need to examine the potential development implications of 
several of the provisions of the proposed Treaty on the Protection of Broad- 
casting Organizations that the Standing Committee on Copyright and Related 
Rights was currently discussing, taking into consideration the interests of con- 
sumers and of the public at large. 50 

Before the WIPO Assemblies started, the A2K movement mobilized support 
for this initiative. The South Centre published an analytical note emphasizing the 
need to integrate development into WIPO activities and processes, thus supporting 
the rationale for such an initiative. 51 



THE EMERGENCE OF THE A2K MOVEMENT 115 



The TACD convened a "Future of WIPO" meeting in mid-September of 2004 
in Geneva. The meeting included a number of prominent figures who had been at 
the forefront of efforts for a more balanced intellectual property system, particu- 
larly in the United States and the United Kingdom, such as Larry Lessig, Yochai 
Benkler, James Boyle, John Sulston, and Tim Hubbard. It also included leading 
activists such as Martin Khor and Richard Stallman. A Geneva-based delegate 
from Argentina also spoke at the meeting. A "Geneva Declaration on the Future of 
WIPO" was shortly launched, signed by leading figures from academia, NGOs, and 
civil society. 

Of course, it was no coincidence that this meeting was held a few days 
before the WIPO Assemblies, which would examine the proposal for a develop- 
ment agenda. It reflected once more the close collaboration between developing 
countries and a number of NGOs that had become active in WIPO processes 
since 2003. 

The few developing-country Geneva delegates who had been actively involved 
in efforts leading to the launch of the WIPO Development Agenda, 52 including this 
author, were convinced that such an initiative on the part of developing countries 
in WIPO would have limited chances of success if it was not supported by civil- 
society groups from the North, which were capable of mobilizing public opinion 
and the media through their networks and advocacy in a manner that would have 
an impact in developed countries. At the same time, NGOs that had identified the 
reform of WIPO as a central part of their advocacy to achieve a more balanced 
and consumer-friendly intellectual property system saw in the WIPO Development 
Agenda a vehicle for moving forward their efforts in this area. 

Consequently, in the same way that the original proposal for a development 
agenda incorporated key elements of the A2K agenda that were important to 
many NGOs and developing countries, the Geneva Declaration on the Future of the 
World Intellectual Property Organization lent its support to the WIPO Develop- 
ment Agenda proposal, stating that it "pointed in the right direction" and "created 
the first real opportunity to debate the future of WIPO." 53 Furthermore, it also 
addressed issues that primarily concerned developing countries, such as the call 
for a fundamental reform of WIPO's technical assistance programs so as to enable 
developing countries to use to the full the flexibilities in the TRIPS Agreement to 
promote access to medicines for all. 54 

The presence of NGOs from the South in these developments was weaker in 
comparison with that of the NGOs and civil-society groups from the North. 55 How- 
ever, this came as no surprise. Many groups in the South that are mobilized on 
issues of the environment, human rights, public health, and poverty alleviation 
were not that engaged or familiar with global debates on access to and ownership 



ll6 ABDEL LATIF 



of knowledge and even less so had means to mobilize around them. The notable 
exception was the Third World Network which was actively engaged in support of 
the WIPO Development Agenda through its advocacy efforts. 56 

It was also only natural that groups from the North had more experience in 
dealing with some of the issues of concern to the A2K movement, such as tech- 
nological protection measures in the digital environment in view of the more 
advanced digital economies and legislations in developed countries. However, their 
experiences in this area were also useful for developing countries that were faced 
with obligations in this area through free-trade agreements or as a result of adher- 
ence to the WIPO Internet Treaties. 

Thus, both the WIPO Development Agenda process and the A2K movement 
brought together developing countries, consumer-based civil-society groups, and 
NGOs, particularly from the North, in a mutually beneficial collaboration. This, of 
course, doesn't necessarily mean that the importance for each one of them of their 
shared priorities is the same. 

In this regard, the A2K concept could be compared to a coin. On one face, we 
find the "A2K for development" concerns of developing countries that seek flex- 
ibilities in intellectual property rules, while on the other, there are the "A2K for 
innovation and creativity" priorities lying beyond the traditional intellectual prop- 
erty system, in which consumers and NGOs are faced with high intellectual prop- 
erty standards in developed countries. Both are mutually relevant and important 
for each other, but each has a different emphasis. For instance, exceptions and 
limitations for educational purposes might be of greater importance to develop- 
ing countries, given their vast educational needs. On the other hand, alternative 
innovation models and open collaborative projects, whose role and impact are 
still limited in developing countries, are more likely to be an immediate priority 
for consumer organizations in developed countries that seek alternatives to pro- 
prietary models of knowledge generation. There is thus a constant balance to be 
maintained within the A2K movement between these two faces of the coin. There 
is no doubt however, that both developing countries and NGOs, respectively as 
predominantly importers and consumers of knowledge goods, share the goal of 
achieving more balanced intellectual property and information and communica- 
tion technology regimes that enable greater access to knowledge. 

After the launch of the WIPO Development Agenda, CPTech organized two 
meetings in 2005 on the A2K treaty proposal, the first with the Third World Net- 
work and the International Federation of Library Associations, and the second 
with the TACD. By May 2005, the current draft A2K treaty was completed. 57 Thus, 
by 2005, the A2K movement was fully formed and had come forward with a major 
norm-setting proposal, the draft A2K treaty. 



THE EMERGENCE OF THE A2K MOVEMENT 117 



By that time, I had left Geneva and had returned to Cairo to assume new pro- 
fessional obligations. I was struck upon my return to Egypt by the extent to which 
A2K and the WIPO Development Agenda, as well as the debates underpinning 
them, had remained confined to a number of specialized circles following intel- 
lectual property issues and to the Geneva multilateral setting. Important efforts 
needed to be made, particularly in the area of raising awareness, to bring a more 
extensive awareness of these debates to developing countries. 

In this regard, a Regional Arab Dialogue on intellectual property and sustain- 
able development was organized by the Bibliotheca Alexandrina, ICTSD and UNC- 
TAD in June 2005. 58 As a follow-up to one of the recommendations of this dialogue, 
the Bibliotheca Alexandrina organized a regional seminar entitled "New Tools for 
the Dissemination of Knowledge and the Promotion of Creativity and Innovation: 
Global Developments and Regional Challenges" on September 7 and 8, 2006. 59 This 
regional seminar adopted a number of recommendations to promote A2K in the 
Arab world, such as raising awareness about open collaboration and new tools for 
the dissemination of knowledge (the Creative Commons, open academic and scien- 
tific journals, and so on) and establishing a regional research agenda. 60 

FUTURE DIRECTIONS FOR THE A2K MOVEMENT 

While the emergence of the A2K movement involved a number of groups engaged 
in intellectual property debates, mostly in the North, as well as developing coun- 
tries at the multilateral level in Geneva, the future growth and consolidation of the 
movement lies in its capacity to mobilize interest and support in the South, partic- 
ularly among governments, civil-society groups, and academia. This is a long-term 
strategic priority for the A2K movement. It is thus imperative to continue raising 
awareness about the importance of A2K issues for developing countries and in 
developing countries. 

In this regard, it is important to clarify that access to knowledge is not the 
antithesis of intellectual property. Developing countries can combine balanced 
intellectual property policies where they use creatively both intellectual prop- 
erty and open business models in some areas (such as in the creative industries) 
while also pursuing overall A2K policies and measures to address their vast edu- 
cational needs and requirements for building scientific and technological capa- 
bilities. Many policies relevant to knowledge pursued by developing countries at 
the national level, such as in the areas of education, culture, intellectual property 
and information and communication technologies, and science and technology in 
general, could be framed and conceptualized in the context of the overall A2K 
paradigm and its objectives. 



118 ABDEL LATIF 



At the international level, there is still much that can be done in terms of 
mainstreaming A2K in policy positions adopted by developing countries in inter- 
national forums, as well as in the diverse groupings to which they belong. 61 
Another pressing priority for the A2K movement at this level is to have a con- 
crete impact on policy processes and deliberations in international processes 
and forums or face the risk of falling into irrelevance or of becoming a purely 
academic exercise. 

In this regard, the proposal for work on exceptions and limitations made by 
a number of developing countries at the March 2008 session of WIPO's Stand- 
ing Committee on Copyright and Related Rights paves the way for a process of 
deliberations of significant importance, one in which the A2K movement should 
be fully engaged and which it should support. 62 The proposal stems from the 
premise that often, developing countries have comparatively fewer exceptions and 
limitations for research, education, the visually impaired, and so in their national 
copyright laws, compared with developed countries, and make less use of them, 
although they might be more in need of them, given their vast needs for access to 
educational material. The proposal raises the possibility of elaborating an inter- 
national instrument on exceptions and limitations that would provide normative 
guidance in this area and include a mandatory set of exceptions and limitations 
that would be common to all WIPO member states. 63 

Another opportunity for the A2K movement lies in the implementation of the 
WIPO Development Agenda recommendations relating to access to knowledge. 
In effect, after two years of intense debates, in September and October 2007, the 
WIPO Assemblies adopted by consensus forty-five recommendations aiming at the 
establishment of a development agenda for WIPO. 64 The assemblies established the 
Committee on Development and Intellectual Property to monitor the implementa- 
tion of these recommendations. At the committee meetings held in March and July 
2008, member states discussed the implementation of a number of recommenda- 
tions, particularly those relating to intellectual property technical assistance. 

The implementation of the recommendations relating to the strengthening of 
the public domain or to the consideration of open, collaborative models requires 
the identification of specific activities and concrete proposals to promote these 
issues in WIPO's activities, such as through awareness raising (seminars, work- 
shops, publications, and so on) legislative advice, or norm setting. The A2K move- 
ment should contribute to the identification of these activities and proposals and 
remain active in this implementation phase, because it might be even more critical 
than the phase of deliberations that took place from 2004 to 2007. It is the actual 
implementation of these recommendations that will determine the extent to which 
the WIPO Development Agenda will have been able to orient WIPO's activities 



THE EMERGENCE OF THE A2K MOVEMENT 119 



toward a more balanced and development-oriented approach to intellectual prop- 
erty and toward promoting creativity and innovation beyond traditional intellec- 
tual property categories in a manner that effectively contributes to A2K. 

Beyond WIPO, the A2K movement should carefully examine influencing other 
relevant policy processes and forums. In this regard, UNESCO, the United Nations 
Educational, Scientific, and Cultural Organization, can be an organization of sig- 
nificant importance for promoting access to knowledge. Until now, it has not been 
central in the preoccupations and advocacy of the A2K movement. In addition, 
the experience of UNESCO in concluding the Convention on Cultural Diversity in 
a relatively short period of time (2003 to 2005) might bear valuable lessons for the 
A2K movement. 

The Internet Governance Forum (IGF) that resulted from the World Summit on 
the Information Society is another venue where the A2K movement has pursued 
its objectives and should continue to do so. 

Beyond WIPO, UNESCO, and the IGF, another interesting possibility would be 
launching an A2K initiative at the UN General Assembly, the competent body for 
discussing all political, economic, and social issues at the UN, particularly issues 
that have a cross-sectoral nature and touch upon many areas of the UN's work, 
such as development, education, culture, science, intellectual property, and so on. 
This step would be critical in the further diffusion and adoption of the A2K para- 
digm by the entire UN system, as has occurred in the past with other concepts, 
such as human development or sustainable development. Of course, this is a long- 
term process, and it requires an active role on the part of governments, as well as 
engagement and leadership from developing countries. The trajectory of the envi- 
ronmental movement from the first environmental summit in Stockholm in 1972 
(where only a handful of heads of state and governments were present) to the Rio 
summit in 1992 (in which more than a hundred heads of state and governments 
participated) represents a valuable experience for the A2K movement to study for 
extracting the appropriate lessons. 

Finally, it is of fundamental importance to generate empirical studies and aca- 
demic work that further contribute to the advancement of the A2K paradigm and 
that underpin it. In this regard, the Yale Law School Information Society Project 
A2K conferences, starting in 2006, have played a valuable role in strengthening 
the links between the A2K movement and academia. Similarly, the A2K country 
studies (Brazil, China, Egypt, India, South Africa) commissioned by the Informa- 
tion Society Project will enrich A2K advocacy as well as raise awareness on A2K in 
developing countries. 65 



ABDEL LATIF 



CONCLUSION 

In its further development and growth, the A2K movement continues to confront 
the need to achieve a delicate balance. On the one hand, while the A2K move- 
ment emerged from an interaction with globalized intellectual property rules and 
processes, particularly at WIPO, it should go beyond these and engage with other 
national and international rules and processes in the areas of education, culture, 
human rights, the environment, and so on. This interaction could further enrich 
A2K conceptually, while at the same time, issues in these areas could benefit from 
being framed in A2K terms. 

However, it is also equally important for the A2K movement to remain focused 
in its advocacy on the original set of issues that led to its emergence — the genera- 
tion, dissemination, and use of knowledge and their regulation— and not to dis- 
perse itself in areas close to its concerns, but where other social actors and move- 
ments are already doing valuable and effective advocacy work. This consideration 
is essential, particularly for developing countries, because new challenges loom 
in the horizon in the form of proposals for higher enforcement standards or new 
enforcement agreements that could possibly be detrimental to the objectives of 
the A2K movement. 66 



NOTES 

The views expressed in this paper do not necessarily reflect the views or opinions of any 
institution with which the author is affiliated. The author is grateful to Pedro Roffe, Edna 
Ramirez Robles, Amy Kapczynski, and Gaelle Krikorian for their valuable comments. He is 
particularly indebted to Gaelle Krikorian for her perseverance and patience 
See Susan K. Sell, Power and Ideas: North-South Politics of Intellectual Property and Antitrust 
(Albany: State University of New York Press, 1998) and Christopher May and Susan K. Sell, 
Intellectual Property Rights: A Critical History (Boulder: Lynne Rienner Publishers, 2006). 
For an analysis of the TRIPS Agreement and its implications for developing countries, see 
Carlos M. Correa, Intellectual Property Rights, the WTO, and Developing Countries: The TRIPS 
Agreement and Policy Options (London: Zed Books, 2001) and United Nations Conference on 
Trade and Development (UNCTAD) and International Centre for Trade and Sustainable Devel- 
opment (ICTSD), Resource Book on TRIPS and Development (Cambridge: Cambridge Univer- 
sity Press, 2005). 

See Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights 
(Cambridge: Cambridge University Press, 2003). 

See, for instance, David Vivas-Eugui, "Regional and Bilateral Agreements and a TRIPS-plus 
World: the Free Trade Area of the Americas (FTAA)," TRIPS Issues Papers 1 (2003), Quaker 
United Nations Office, Quaker International Affairs Programme, and the International Centre 



THE EMERGENCE OF THE A2K MOVEMENT 



for Trade and Sustainable Development and Sisule Musungu and Graham Dutfield, "Multi- 
lateral Agreements and a TRIPS-plus World: The World Intellectual Property Organisation," 
TRIPS Issues Papers 3 (2003), Quaker United Nations Office and Quaker International Affairs 
Programme. 

5 For the WIPO Digital Agenda, see http://www.wipo.int/copyright/en/digital_agenda.htm 
(last accessed March 13, 2009). 

6 Declaration on the TRIPS Agreement and Public Health, WTO Doha Ministerial Conference, 
4th Sess., WTO Doc. WT/MIN (0O/DEC/W/2 (November 14, 2001). See Sangeeta Shashikant's 
essay, "The Doha Declaration on TRIPS and Public Health: An Impetus for Access to Medi- 
cines," in the present volume. 

7 See Susan K. Sell, "TRIPS and the Access to Medicines Campaign," Wisconsin International 
Law Journal 20, no. 2 (2002): pp. 481-522. 

8 The Quaker United Nations Office in Geneva played a particularly important role in providing 
technical support to developing-country delegates, with the assistance of a number of legal 
experts. 

9 Commission on Intellectual Property Rights (CIPR), Integrating Intellectual Property Rights 
and Development Policy (London: Commission on Intellectual Property Rights, 2002). 

10 Ibid., p. 102. 
n Ibid., p. 104. 

12 For views on the report in the media, see http://www.iprcommission.org/graphic/views.htm 
(last accessed March 13, 2009). 

13 Some developing countries began to cite the report in deliberations on intellectual prop- 
erty issues. As an illustration, see para. 152 of the General Report of the 37th Series of 
Meetings, Assemblies of Member States of WIPO, September 23 to October I, 2002, contained 
in document A/37/14, available on-line at http://www.wipo.int/edocs/mdocs/govbody/ 
en/a_37/a_37_i4.pdf (last accessed March 13, 2009). 

14 See, for instance, Peter Drahos, "Developing Countries and International Intellectual Prop- 
erty Standard -Setting," The Journal of World Intellectual Property 5, no. 5 (September 2002). 

15 CIPR, Integrating Intellectual Property Rights and Development Policy, p. 157 

16 Such as the Substantive Patent Law Treaty (SPLT) at WIPO. 

17 See "Towards Development-Oriented Intellectual Property Policy: Setting an Agenda for the 
Next Five Years," ICTSD-UNCTAD Dialogue, The Rockefeller Foundation's Bellagio Confer- 
ence Center, October 30-November 2, 2002, available on-line at http://www.iprsonline.org/ 
unctadictsd/bellagio/docs/BellagioOutcome_Report.pdf (last accessed March 13, 2009). 

18 For more on the impact of these meetings, see Joe Karaganis, The Bellagio Global Dialogues 
on Intellectual Property (New York: Social Science Research Council, 2006). 

19 Joseph Stiglitz was one of the most prominent advocates of this discourse. See Joseph Sti- 
glitz, Globalization and Its Discontents (New York: Norton, 2002). For a view from the South, 
see Martin Khor, Rethinking Globalization: Critical Issues and Policy Choices (London: Zed 
Books, 2001). 

20 On the role of Geneva representations of developing countries, see CIPR, Integrating Intel- 
lectual Property Rights and Development Policy, p. 164. 

21 For these coordination problems, see Ahmed Abdel Latif, "Developing Country Coordination 
in International Intellectual Property Standard-Setting," Working Paper 24 (TR.A.D.E), South 
Centre, Geneva (2005). 



ABDEL LATIF 



22 It is important to note, however, that a number of NGOs active in the access-to-medicines 
campaign had already started to raise questions about the extent to which WIPO's techni- 
cal assistance integrated the public-health flexibilities contained in the Doha Declaration on 
TRIPS and Public Health. See Medecins Sans Frontieres, Consumer Project on Technology, 
Health Action International, and Oxfam, Implementation of the Doha Declaration on the TRIPS 
Agreement and Public Health: Technical Assistance — How to Get It Right (March 2002), avail- 
able online at http://www.haiweb.org/campaign/access/ReportPostDoha.pdf (last accessed 
March 14, 2009). 

23 The text of the agreement is available on-line at http://www.wto.org/english/tratop_e/ 
trips_e/wtowip_e.htm (last accessed March 14, 2009). 

24 See http://www.wto.0rg/English/news_e/pres98_e/prlo8_e.htmandhttp://www.wtocenter. 
org.tw/SmartKMS/fileviewer?id=7973 (both last accessed March 14, 2009). 

25 See Drahos, "Developing Countries and International Intellectual Property Standard-Setting," 
and Musungu and Dutfield, "Multilateral Agreements and a TRIPS-plus World." 

26 See Abdel Latif, "Developing Country Coordination in International Intellectual Property 
Standard-Setting," and Musungu and Dutfield, "Multilateral Agreements and a TRIPS-plus 
World." 

27 Countries that were involved included Argentina, Brazil, Egypt, and India. 

28 These included the Center for International Environmental Law, the International Centre for 
Trade and Sustainable Development, the Quakers United Nations Office, and Third World 
Network. 

29 The eight Millennium Development Goals, which range from halving extreme poverty to 
halting the spread of HIV/AIDS and providing universal primary education, were adopted 
in September 2000 at a meeting of world leaders in New York that endorsed the United 
Nations Millennium Declaration. This Declaration set out a series of time-bound targets — 
with a deadline of 2015 — that have become known as the Millennium Development Goals. 
For more information, see http://www.un.org/millenniumgoals/bkgd.shtml (last accessed 
March 14, 2009). 

30 See Laura DeNardis's essay, "The Global Politics of Interoperability," in this volume. 

31 Text of intercessional work between the second and third convening of the Preparatory 
Committee, new para. 40 in the document WSIS03/PCIP/DT/4(Rev.3)-E, available on-line at 
http://www.itu. int/wsis/documents/doc_single.asp?lang=en&id=699 (last accessed March 
14, 2009). 

32 See para. 42 of the Geneva Declaration of Principles contained in document WSIS-03/ 
GENEVA/DO C/4-E, available on-line at http://www.itu.int/wsis/documents/doc_multi.asp? 
lang=en&id=ll6l|ll6o (last accessed March 14, 2009). 

33 The NGOs included CPTech, IP Justice, the Electronic Frontier Foundation, and others. 

34 Letter available on-line at http://www.cptech.org/ip/wipo/kamil-idris-7july2003.pdf (last 
accessed March 14, 2009). 

35 William New, "U.S. Official Opposes Open Source Talks at WIPO," Technology Daily, August 
19, 2003, available on-line at http://lists.essential.org/pipermail/random-bits/2003-August/ 
001090. html (last accessed March 14, 2009). 

36 "Workshop on the WIPO Work Program and How to Involve Consumers," Trans Atlantic 

Consumer Dialogue, Lisbon, October 17, 2003. 

37 See Musungu and Dutfield, "Multilateral Agreements and a TRIPS-plus World." 



THE EMERGENCE OF THE A2K MOVEMENT 123 



38 See Carlos M. Correa and Sisule Musungu, "The WIPO Patent Agenda: The Risks for Develop- 
ing Countries," T.R. A. D.E Working Papers 12, South Centre (Geneva, 2002). 

39 See the report of the 2nd UNCTAD-ICTSD Bellagio Dialogue on Development and Intellectual 
Property Policy, Towards Development-Oriented Intellectual Property Policy: Advancing the 
Reform Agenda (September 18-21, 2003), available on-line at http://ictsd.net/i/events/dia- 
logues/35259 (last accessed March 14, 2009). 

40 The South Centre is an intergovernmental organization of developing countries with head- 
quarters in Geneva established by an intergovernmental agreement that came into force on 
July 31, 1995. The organization is intended to meet the need for the analysis of development 
problems and experience, as well as to provide the intellectual and policy support required 
by developing countries for collective and individual action, particularly in the international 
arena. For more information, see http://www.southcentre.org/index. php?option=com_ 
content&task=view&id=l&Itemid=l (last accessed March 14, 2009). 

41 "Global Access to Essential Learning Tools," New York, April 5, 2004. See Manon A. Ress's 
essay, "Open-Access Publishing: From Principles to Practice," in this volume. 

42 Article 12 of the International Covenant on Economic, Social and Cultural Rights. 

43 Article 13 of the International Covenant on Economic, Social and Cultural Rights. 

44 Article 15 (a) and (b) of the International Covenant on Economic, Social and Cultural Rights. 

45 This indeed happened with the series of A2K conferences at Yale University starting in 2006. 

46 See Correa and Musungu, "The WIPO Patent Agenda: The Risks for Developing Countries." 
See also Viviana Muhoz Tellez and Sisule F. Musungu's essay, "A2K at WIPO: The Develop- 
ment Agenda and the Debate on the Proposed Broadcasting Treaty," in this volume. 

47 For an elaboration on this issue, see Abdel Latif, "Developing Country Coordination in Inter- 
national Intellectual Property Standard -Setting," p. 32. 

48 These countries were Bolivia, Cuba, the Dominican Republic, Ecuador, South Africa, Egypt, 
Kenya, Iran, Peru, Sierra Leone, Tanzania, and Venezuela. 

49 See Peter Drahos, "Developing Countries and International Intellectual Property Standard- 
Setting," Study Paper 8 for the CIPR Commission (2002), available on-line at http://www. 
iprcommission.org/papers/pdfs/study_papers/sp8_drahos_study.pdf (last accessed March 
15, 2009). 

50 The proposal is contained in document WO/GA/31/ll, available on-line at http://www.wipo. 
int/edocs/mdocs/govbody/en/wo_ga_3l/wo_ga_3l_ll.pdf (last accessed March 15, 2009). 

51 Integrating Development into WIPO Activities and Processes: Strategies for the 2004 Assem- 
blies, South Centre, Analytical Note, SC/TADP/AN/IP/2 (August 2004), available on-line at 
http: //www. southcentre.org/index.php ?option=com_content&task=view&id=8o&Itemid= 
67t (last accessed March 15, 2009). 

52 See para. 284 in the General Report of the 43rd Series of Meetings, Assemblies of Member 
States of WIPO, contained in document A/43/16, available on-line at http://www.wipo.int/ 
meetings/en/doc_details.jsp?doc_id=88952 (last accessed March 15, 2009). 

53 Geneva Declaration on the Future of the World Intellectual Property Organization, available on- 
line at http://www.cptech.org/ip/wipo/genevadeclaration.html (last accessed March 15, 2009). 

54 Ibid. 

55 This has evolved since 2004 with the involvement of institutions from the South in A2K 
advocacy, such as the Fundacao Getulio Vargas in Brazil and the Bibliotheca Alexandrina in 

Egypt. 



124 ABDEL LATIF 



56 See, for instance, Third World Resurgence Magazine, no. 171-72 (November-December 2004), 
available on-line at http://www.twnside.org.sg/focus.htm (last accessed March 15, 2009). 

57 The draft treaty is available on-line at http://www.cptech.org/a2k/a2k_treaty_may9.pdf 
(last accessed March 15, 2009). 

58 For more information, see http://www.iprsonline.org/unctadictsd/dialogue/2005-06-26/ 
2005-06-26_desc.htm (last accessed March 15, 2009). 

59 For more information, see http://www.bibalex.org/a2k/Event/BAEventList.asps (last 
accessed March 15, 2009). 

60 See http://www.bibales.org/a2k/attachments/BAEvents/Recomendation.pdf (last accessed 
March 15, 2009). 

61 Such as the G77, the Nonaligned Movement, the African Union, the New Economic Partner- 
ship for Africa (NEPAD), the League of Arab States, the Organization of the Islamic Confer- 
ence (OIC), as well as the India-Brazil-South Africa forum (IBSA). 

62 See the proposal by Brazil, Chile, Nicaragua, and Uruguay for work related to exceptions and 
limitations contained in document SCCR/16/2, available on-line at http://www.wipo.int/ 
meetings/en/doc_details.jsp?doc_id=l077i2 (last accessed March 15, 2009). 

63 For the rationale and policy options to elaborate such an instrument, see P Bernt Hugenholtz 
and Ruth L. Okediji, Conceiving an International Instrument on Limitations and Exceptions to 
Copyright (May 6, 2008), available on-line at http://www.soros.org/initiatives/information/ 
articles_publications/publications/copyright_20080 506/copy right_20080506.pdf (last 
accessed March 15, 2009). 

64 Available at http://www.wipo.int/ip-development/en/agenda/recommendations.html 
(last accessed March 15, 2009). The forty-five recommendations are divided into six clusters: 
Cluster A— technical assistance and capacity building; Cluster B — norm setting, flexibilities, 
public policy, and the public domain; Cluster C — technology transfers, information and com- 
munication technology, and access to knowledge; Cluster D — assessments, evaluation, and 
impact studies; Cluster E — institutional matters, including mandates and governance; and 
Cluster F — other issues. 

65 The first study to be available is on Brazil. Lea Shaver (ed.), Access to Knowledge in Brazil: 
New Research on Intellectual Property, Innovation and Development, Information Society 
Project, 2008, available on-line at http://www.law.yale.edu/intellectuallife/6620.htm (last 
accessed March 15, 2009). 

66 Proposals for higher enforcement standards include the SECURE standards advanced in the 
context of the World Customs Organization. See Viviana Muhoz Tellez, "World Customs Organ- 
isation: Setting New Standards of Intellectual Property Enforcement through the Back Door?" 
South Bulletin, no. 13 (April 16, 2008), p. 6, available on-line at http://www.southcentre. 
org/index.php?option=com_content&task=view&id=592&Itemid=l0 5_ (last accessed 
March 15, 2009). Proposals for new enforcement agreements include the proposed Anti- 
Counterfeiting Trade Agreement. 



THE EMERGENCE OF THE A2K MOVEMENT 125 




Treat 

the 

People! 



GLOBAL HIV/AIDS 
TREATMENT NOW 



Campaigning material produced by Health Cap (Global Access Project). 



The Revised Drug Strategy: 

Access to Essential Medicines, Intellectual Property, 

and the World Health Organization 



Ellen 't Hoen 



The magnitude of the AIDS crisis has drawn attention to the fact that millions 
of people in the developing world do not have access to the medicines that are 
needed to treat disease or to alleviate suffering. The high cost of AIDS medicines 
has also focused attention on the relation between patent protection and high 
drug prices. The difficulties that developing countries experience in paying for 
new essential medicines have raised concerns about the effects of the 1995 World 
Trade Organization (WTO) Trade-Related Aspects of Intellectual Property Rights 
(TRIPS) Agreement, which sets global standards for the protection of intellectual 
property (IP). These standards derive from Western countries with a high level of 
industrial development, and though they are often referred to as "minimum" stan- 
dards, they set the bar very high. The AIDS crisis gives us an alarming preview of 
the consequences of such intellectual property rules, which by no means are con- 
fined to AIDS medicines. All new health-care products may be affected by TRIPS 
and by the new patent rules that it imposes on almost every country in the world. 

However the lack of access to medicines is not a recent problem for the devel- 
oping world. For decades, countries have been dependent on Western companies 
for their supply of medicines, and they have at times suffered from it. 1 Western- 
style pharmaceutical patent-protection requirements are likely to increase devel- 
oping countries' dependency further. 

During the 1990s, in response to developing countries' need to increase the 
availability and improve the use of medicines, the World Health Organization 
(WHO) developed a medicine policy called the Revised Drug Strategy. The Revised 
Drug Strategy built strongly on the concept of "essential drugs" created in the late 
1970s. (See the sidebar "The Concept of Essential Medicines.") After the adoption 
of the TRIPS Agreement, it became obvious that the Revised Drug Strategy needed 
to be adjusted to take into account the effects of intellectual property protection, 



127 



and in particular of patenting, on the production and availability of medicines. In 
fact, the very concept of "essential drugs" brought the dilemma over intellectual 
property to the fore at the WHO. After all, the work of the program responsible 
for implementing the Revised Drug Strategy risked becoming obsolete, because 
its advice was based on a world where countries were at liberty to determine the 
kind of pharmaceutical patent regimes that they wished to have. The Revised Drug 
Strategy strongly recommended that countries adopt a national policy encourag- 
ing the use of generic medicines, a recommendation that ran counter to the new 
obligations that countries took on under the WTO TRIPS rules in 1995. Countries' 
struggle to access newer medicines such as antiretrovirals to treat people living 
with AIDS illustrated the need to adapt the Revised Drug Strategy to this new real- 
ity. The discussions on the Revised Drug Strategy came at a point in history where 
intellectual property became a controversial issue around which NGOs and health 
experts launched campaigns. The purpose of this article is to revisit this history to 
show how intellectual property became a political issue in the area of health, how 
NGOs became mobilized around the issue of intellectual property, and how the 
WHO became a major forum in which to discuss the impact of intellectual property 
legislation on people's lives. 

THE ADOPTION OF THE REVISED DRUG STRATEGY 

In November 1985, member states, the pharmaceutical industry, academia, con- 
sumer groups, and the WHO secretariat met in Nairobi under the leadership of 
then WHO director general Dr. HalfdanT. Mahler to discuss the WHO's strategy on 
medicines. At the 1984 World Health Assembly, the annual meeting of the WHO's 
member states, groups such as Health Action International, a network of consumer 
groups, public-interest NGOs, health-care providers, academics, media, and indi- 
viduals in more than seventy countries advocating for "increased access to essen- 
tial medicines and improved rational use of medicines," 2 expressed concerns that 
the focus of the WHO's work on supply overshadowed the need to improve the use 
of medicines, to deal with unethical marketing practices, and to remove useless 
and dangerous products from the market. Health Action International felt that the 
WHO's involvement in medicine policy should go beyond listing what should be in 
every country's medicine chest and called for international rules that could help 
countries to intervene in how drug companies behave. 

Director General Dr. Mahler announced at the meeting that he would develop 
"a strategy for strengthening WHO's activities in support of the action required to 
make drug use more rational throughout the world." He listed the key elements 
that such a policy related to access to medicines should contain: measures to 



128 



THE CONCEPT OF ESSENTIAL MEDICINES 

In the 1970s, in public-health circles, there was a strong move toward establishing 
primary health care. The selection and provision of essential medicines was then 
increasingly seen as a core function of governments in the context of primary care. 
As a result, in 1975, the World Health Assembly, the annual assembly of the WHO 
member states, adopted a resolution calling on the WHO to assist its members to 
select and procure essential drugs and assure that these drugs were of good guality 
and reasonable cost. 1 The first WHO Essential Drugs List, containing 207 items, was 
published in 1977. The purpose of the list was to identify those medicines "of utmost 
importance, basic, indispensable and necessary for the health and needs of the popu- 
lation." 2 Selection criteria included issues related to efficacy, quality, safety, and cost. 
Since then, fifteen editions of the list have been published. Today, the WHO Essen- 
tial Drugs List— rebaptized the Essential Medicines List in 2002 — contains around 
325 items. The list is regularly updated to be able to respond to new needs, drug 
resistance, medical advances, scientific developments, and new evidence with regard 
to efficacy and safety. The Essential Medicines List is also useful to identify gaps in 
research and development of new essential medicines. For example, a few years ago, 
expert discussions over the Essential Medicines List highlighted the obvious need for 
pediatric formulations of AIDS medicines to treat children. Because pediatric AIDS is 
rare in rich countries, companies lacked the commercial incentive to develop easy-to- 
use medications for children. 

Although the basic notion that some drugs are essential and others are not and 
the creation of an evidence-based list of essential drugs may not seem either contro- 
versial nor radical, the concept of essential medicines has been both. Dr. Ernst Lau- 
ridsen, the first director of the WHO Action Programme on Essential Drugs, described 
it as a "peaceful revolution in international public health." 3 However, the adoption of 
this new policy did not happen without controversy. The pharmaceutical industry saw 
the concept of essential medicines and WHO's work with governments on medicine 
policies as a frontal attack on its freedom to operate and feared that it would lead 
to government interference in the industry's marketing practices. Countries would 
indeed use the list to exclude drugs on the Essential Medicines List from patentabil- 
ity, as was the case in the Andean region; to remove medicines from the market; to 
establish price controls; and to develop their own national manufacturing capacity of 
essential medicines, thereby reducing dependence on Western companies. 

NCOs have played an important role in protecting and promoting the concept 
of essential medicines. Health Action International, a global network of health and 
pharmaceutical groups and individuals, was a particularly key player in the advo- 
cacy for essential health policies at both the international and the national levels. 
This organization has its roots in the consumer movement in the Global South; its 



129 



members saw the detrimental effects of the lack of essential medicines and the avail- 
ability of dangerous and ineffective drugs on a daily basis. 

In 1977, the International Federation of the Pharmaceutical Manufacturers Asso- 
ciation, the main international lobbying organization for the multinational phar- 
maceutical industry, called the medical and economic arguments for the Essential 
Medicines List "fallacious" and claimed that adopting it would "result in substandard 
rather than improved medical care and might well reduce health standards already 
attained." 4 The industry was particularly concerned that the Essential Medicines List 
would become a global concept, applicable beyond the developing world, and, for 
example, be used for priority setting in the marketing approval of medicines or in the 
reimbursement decisions of health-insurance companies in industrialized countries. 
Such measures, they feared, would, for example, limit the industry's ability to market 
aggressively new medicines that have larger profit margins than older ones. 

In 1982, a spokesman of the U.S. pharmaceutical manufacturers organization said 
that "the industry feels strongly that any efforts by the World Health Organization 
and national governments to implement this action program should not interfere 
with existing private sector operations," thereby signaling the industry's concern that 
industrialized countries would use the concept of essential medicines to introduce 
limited lists of prioritized medicines. The Italian drug industry put it more crudely in 
response to the Italian Senate's attempts to introduce an essential medicines list: "If 
they want to turn Italy into a Third World country, this is the way to go about it." 5 
According to the drug industry view, the Essential Medicines List should be a tool 
only for the public sector in the poorest nations of the world. 

This view has not changed much in the last twenty-five years. A 2002 Interna- 
tional Federation of the Pharmaceutical Manufacturers Association issue paper on 
the concept of essential medicines expressed the belief that policies that extend 
restrictive drug policies to industrialized countries pose a serious threat to the deliv- 
ery of effective health care and pose a threat to investment in drug research — a stan- 
dard, multipurpose argument used by the pharmaceutical industry to object to any 
policy they see as detrimental to their interests. 



1 World Health Assembly, Resolution WHA28.66. 

2 World Health Organization, The Selection of Essential Drugs: Report of a WHO Expert 
Committee, WHO Technical Report Series 615 (Geneva: World Health Organization, 1977). 

3 Andrew Chetley, A Healthy Business?: World Health and the Pharmaceutical Industry 
(London: Zed Books, 1990), p. 75. 

4 Najmi Kanji et al., Drugs Policy in Developing Countries (London: Zed Books, 1992), p. 30. 

5 Scrip, no. 1 (1987). 



130 



improve the way medicines are regulated, measures to improve the way they move 
in international commerce, and measures to improve the way they are advertised 
and used. 3 

Six months later, in May 1986, the World Health Assembly adopted the WHO 
Revised Drug Strategy, which prescribed a series of actions to ensure the avail- 
ability of affordable essential medicines and strategies to improve the use of these 
medicines ("the rational use of drugs"). The Revised Drug Strategy would become 
the organization's policy on medicine for decades to come. 

Participants in the Nairobi conference discussed high drug prices, addressed the 
fact that pharmaceutical research and development of medicines with real thera- 
peutic value was lacking, compared with R&D on medicines that were only trivial 
advances, and the need to stimulate local production of essential medicines in 
developing countries to decrease the dependence on Western companies. For these 
countries, local production was also seen as an industrial-development objective 
as such. But notably, the subject of pharmaceutical patenting was nowhere on the 
radar screen of this gathering of the world's premier health experts and advocates. 

Ironically, while the Revised Drug Strategy was being formulated, pharma- 
ceutical companies were establishing an elite, high-powered lobbying group that 
worked to include intellectual property in the agenda of the General Agreements 
on Tariffs and Trade (GATT) framework, the predecessor of the WTO. 4 It would 
take another ten years before health advocates would make the link between 
access to medicines and the GATT talks. Nevertheless, unknowingly, by expanding 
the WHO's role in medicine policies, the Nairobi conference laid the foundation for 
later activism on intellectual property issues and access to medicines. 

TRADE CONCERNS EMERGE 

Ten years after the historic Nairobi conference, the International Conference on 
National Medicinal Drug Policies was held in Sydney, Australia, in 1995. 5 Delegates 
discussed most components that were considered essential to a sound medicine 
policy: how to select essential medicines, what measures to take to increase access 
to medicines, how to encourage the correct prescription by physicians and the 
proper use by consumers of medicines, how to establish government regulations 
that ensure that medicines are effective, safe, and of good quality, and how to 
regulate the drug industry and its drug-promotion practices. 

It was at this conference that for the first time public-health advocates raised 
the concern that the globalization of new international trade rules and the harmo- 
nization of regulatory requirements would restrict countries' ability to implement 
drug policies that would ensure access to medicine for all. These concerns came 



THE REVISED DRUG STRATEGY 131 



in particular from speakers from Latin America and Asia, who drew attention to 
the long-term consequences of the introduction of twenty-year product patents — 
as required by the WTO — in countries such as India and Argentina, which were 
home to extensive generic-drug industries. Tellingly, some responded by suggest- 
ing that the effects of patents could be countered with policies for the substitu- 
tion of generic drugs. Of course, a generic version of a product is precisely what a 
patent forbids. However, promoting generic medicines was a staple of the WHO's 
medicine policy as articulated in the Revised Drug Strategy, because by encour- 
aging competition between producers, the substitution of generics can result in 
a reduction in the price close to marginal cost levels, and generic medicines are 
on the whole a fraction of the price of brand-name medicines. Such contradictory 
comments made it apparent that even drug-policy experts at the time had a very 
limited understanding of the ramifications of new international rules on intellec- 
tual property. 

Nevertheless, over the course of this meeting, delegates did come to recog- 
nize their need to get a better sense of the consequences of new trade rules. And 
the meeting recommended that the WHO and local governments investigate and 
address the effect of agreements such as TRIPS on national medicine policies and 
take action to ensure that health policies are primary where trade-related policies 
are formulated. 6 

The debate quickly took hold when, at the next annual meeting of the WHO's 
member states in 1996, health ministers debated for the first time the effects of 
new WTO trade rules on access to medicines. 7 This debate was long overdue, con- 
sidering that the WTO agreements were negotiated without input from health 
experts and had already gone into effect. 

ESSENTIAL MEDICINES AND INTELLECTUAL PROPERTY AT THE WHO: 
FROM RED BOOK TO BLUE BOOK 

The public-health advocates coordinated by Health Action International first 
raised concerns about the consequences of globalization and international trade 
agreements for drug access during the 1996 World Health Assembly. They sought 
to get the WHO to intervene in intellectual property issues because it became 
apparent that the GATT negotiators had drawn up the rules without any consid- 
eration for health issues. The assembly debated a resolution on the Revised Drug 
Strategy 8 As a result of Health Action International's intervention, the resolution 
included a request for the WHO to study and report on the impact of the work 
of the WTO with respect to national drug policies and essential drugs and make 
recommendations for collaboration between the WTO and the WHO. This was 



132 



important, because it gave the WHO a mandate to develop work on the effects of 
the new WTO rules, which was a new terrain for the organization. 

This resolution gave the WHO the mandate to publish, in 1998, the first guide 
with recommendations to member states on how to implement TRIPS while limiting 
the negative effects of higher levels of patent protection on drug availability. 9 The 
response to this guide from the United States and a number of European countries 
was swift and fiercely negative. In particular, the United States, working very closely 
with drug-company lobby groups, pressured the WHO to withdraw the publication, 
calling the book "an outrageous and biased attempt to mold international opinion." 10 

Initially, the WHO withdrew the publication— which, because of its red cover, 
became known as "the red book" — and reissued it with some minor changes and 
an annex containing presentations by different parties reflecting different views 
on the issue of pharmaceutical patenting, but this time with a blue cover. Dr. Gro 
Harlem Brundtland, who had just been elected director general of the WHO, did 
not yield to the pressures and instead organized a meeting at which she invited 
a number of parties to express their views. She also dealt with the criticisms that 
the book held inaccurate information by inviting external reviews. The reviewers 
found very little wrong with the report. While the U.S. action caused a delay in 
publication, it did not succeed in suppressing the report. But sadly, in future WHO 
work on trade and intellectual property issues, this would be different. 

The WHO's involvement in trade and intellectual property issues would remain 
highly controversial in the years that followed. The simple emphasis that the WHO 
placed on public-health needs over trade interests was perceived as a threat to the 
commercial sector of the industrialized world. In particular, a greater role for the 
WHO in issues related to TRIPS created considerable concern within the pharma- 
ceutical industry, which lobbied hard against it. 

A draft resolution discussed at the 1998 WHO Executive Board, the governing 
body of the WHO responsible for preparing the annual World Health Assembly, 
called on the WHO member countries to ensure that public health, rather than 
commercial interests, would have primacy in pharmaceutical and health policies. 
The resolution further referred to TRIPS and asked the WHO director general to 
analyze the effects of new trade agreements on health and to develop measures to 
counter these effects. 

In 1998, in response to this draft resolution on the Revised Drug Strategy and 
in reference to "considerable concern among the pharmaceutical industry," the 
position of the European director general for trade of the European Commission's 
position was "No priority should be given to health over intellectual property 
considerations." 11 

The WHO Executive Board established an ad-hoc group chaired by France to 



THE REVISED DRUG STRATEGY 133 



prepare for the discussions on the Revised Drug Strategy at the World Health 
Assembly in 1999. The issue of trade agreements with regard to intellectual 
property and access to medicines had been put on the agenda of the WHO and 
was there to stay. The Executive Board ad-hoc group organized a five-day 
meeting, including a one-day hearing with interested parties. It concluded 
its work with a proposed resolution that was sent to the Fifty-Second World 
Health Assembly 12 

That was also the year during which NGOs increased their involvement in the 
trade and health debates. In anticipation of the 1999 Seattle WTO ministerial con- 
ference, there was a flurry of activity and networking that strengthened the base 
of knowledge that NGOs had about intellectual property and their ability to mobi- 
lize quickly in relation to the issue, fuelled by the "health primacy" debates at the 
World Health Assembly and against the backdrop of a South African court case in 
which a group of thirty-nine pharmaceutical companies had taken South Africa to 
court over its Medicines and Related Substances Control Act, claiming that some 
of its provisions that could be used to supply patients with cheap medicines were 
not compliant with WTO standards. 13 A key coalition of groups consisted of Health 
Action International, the Consumer Project on Technology (CPTech, now Knowl- 
edge Ecology International, KEI), Act Up-Paris, the Health GAP coalition, Oxfam, 
and the Access to Medicines campaign of Medecins Sans Frontieres (MSF). These 
groups worked in close collaboration with national treatment-action groups in var- 
ious countries, notably in Thailand, Brazil, India, and South Africa. 

The resolution adopted by the World Health Assembly in 1999 strength- 
ened the WHO's role in intellectual property issues. 14 The text no longer called 
for the "primacy of health over trade," but noted the importance of "ensur- 
ing that public health interests are paramount in pharmaceutical and health 
policies." This is certainly a departure from the coalition's initial intention, but 
it did put the health advocates at the table of trade negotiations, as the subse- 
quent developments at the WTO TRIPS Council and the Doha WTO ministe- 
rial conference would show. 15 The resolution also urged countries to look into 
the options they have under current trade rules to safeguard access to essential 
medicines, a clear reference to the flexibilities available under the TRIPS Agree- 
ment, such as compulsory licensing, which allows governments to overcome 
patents and produce, import, export, and market generic versions of a pat- 
ented drug. Most importantly, the assembly requested that the WHO assess the 
health implications of trade agreements, which was understood to mean the 
WTO TRIPS Agreement, with a view to assisting countries to mitigate the nega- 
tive effects of this agreement. This was in response to countries' calls on the 
WHO for technical assistance in implementing TRIPS flexibilities. In summary, the 



134 



UPDATING AND DISSEMINATING THE WHO'S MODEL LIST OF ESSENTIAL DRUGS 

In 2001, the WHO, prompted by groups such as Medecins Sans Frontieres' campaign 
for access to essential medicine and various academics, 1 embarked on a process to 
change the way new medicines were included in the WHO Model List of Essential 
Drugs. Over time, the reguirement that an essential medicine be affordable had 
become a barrier to the inclusion of newer medicines. New medicines that are widely 
patent protected tend to be available at monopoly prices only because of the lack 
of generic competitors. In practice, this meant that the WHO was reluctant to label 
such products as "essential," because governments would not be able to afford them, 
and purchase of expensive medicines would be to the detriment of the treatment 
of other diseases. As a result, antiretroviral medicines needed to treat people living 
with AIDS were not on the list. In a world where over forty million people are infected 
with HIV and eight thousand die from AIDS every single day, maintaining the position 
that proven-effective antiretroviral medicines are "not essential" became absurd and 
risked making the WHO Essential Drugs List irrelevant. 

By guestioning the affordability criteria for including a medicine on the list, NCOs 
and health experts made two points: First, the primary criteria for defining an essen- 
tial medicine should be the medical need for that product, and second, once a prod- 
uct is labeled "essential," it should be affordable and available to the individuals and 
communities that need access to it. 

The 2002 definition of essential medicines changed. It stressed the need for 
essential medicines to be available at a price the individual and the community can 
afford. 2 The new definition implied that governments have an obligation to assure 
the availability and affordability of these products. And a high price was no longer 
a barrier for inclusion in the list. With this measure, the WHO anticipated that the 
Essential Drugs List, on which national essential drugs lists are based, could become 
a useful tool for selecting candidate drugs for compulsory licensing or other cost- 
containment measures. 

1 Pierre Chirac and Richard Laing, "Updating the WHO Essential Drugs List," Lancet 357, 
no. 9262 (April 7, 2001): p. 1134. 

2 The 2002 definition of essential medicines reads: "Essential medicines are those that 
satisfy the priority health care needs of the population. They are selected with due 
regard to public health relevance, evidence on efficacy and safety, and comparative 
cost-effectiveness. Essential medicines are intended to be available within the context 
of functioning health systems at all times in adequate amounts, in the appropriate dos- 
age forms, with assured quality and adequate information, and at a price the individual 
and the community can afford. The implementation of the concept of essential med- 
icines is intended to be flexible and adaptable to many different situations; exactly 
which medicines are regarded as essential remains a national responsibility." World 
Health Organization, "Essential Medicines," available on-line at http://www.who.int/ 
topics/essential_medicines/en (last accessed February 26, 2010). 



135 



MILLIONS OF BABIES 



WONT LIVE 

TO SEE THIS DAY. 



* - *4-+* a 




Medecins Sans Frontieres Campaign 
for Access to Essential Medicines poster 
calling attention to the fact that patent- 
based companies neglect the needs of 
people in developing countries (Medecins 
Sans Frontieres). 



resolution amended the Revised Drug Strategy to enable the WHO to start work 
in an area previously the exclusive domain of trade negotiators and intellectual 
property lawyers. 

Subsequent resolutions of the World Health Assemblies have further strength- 
ened the WHO's mandate in the trade arena. In May 2001, the World Health 
Assembly adopted two resolutions in particular that had a bearing on the debate 
over TRIPS. 16 The resolutions addressed the need to strengthen policies to increase 
the availability of generic drugs and the need to evaluate the impact of TRIPS on 
access to drugs, local manufacturing capacity, and the development of new drugs. 
Each time, the adoption of these resolutions required massive mobilization by 
civil-society groups. The coalition of NGOs mentioned above had gained strength. 
Since the 1999 WTO Seattle conference, it was active on two fronts in Geneva: the 
WTO TRIPS Council and the WHO itself. The South African court case in which 
thirty-nine multinational drug companies sued South Africa over the access provi- 
sions in its Medicines Act helped to advertise globally the need to push back the 
commercial lobby in favor of a more health-oriented international trade agenda. 



136 



ESSENTIAL MEDICINES AND COMPULSORY LICENSING 

According to the WHO Revised Drug Strategy, essential medicines should be avail- 
able at a price that the individual and the community can afford. Before TRIPS, 
some developing countries assured cost containment by excluding medicines or 
"essential medicines" from patentability. For example, until 1991, only manufactur- 
ing processes for the preparation of medicines were patentable in the countries of 
the Andean Community — not the medicines themselves. Following the introduc- 
tion of pharmaceutical product patents in 1991, the Andean Community adopted 
a declaration that provided that "inventions related to pharmaceutical products 
included in the WHO Model List of Essential Drugs" — the Essential Medicines 
List — should not be patentable. 17 This measure was taken to prevent abusive pric- 
ing of essential medicines that could result from the new patent rules. 

Venezuela, with support from the Andean group and other developing coun- 
tries, in particular South Africa, proposed at the Third Ministerial Conference of 
the WTO in Seattle in 1999 to amend TRIPS to create a new exception to patentabil- 
ity for medicines on the WHO Essential Medicines List. 18 A counterproposal led by 
the European Community was "to issue . . . compulsory licenses for drugs appearing 
on the list of essential drugs of the World Health Organization." 19 At that time, 
only about 11 of the 306 products on the WHO Model List of Essential Drugs were 
patented in certain countries. 20 The adoption of the EC proposal would have seri- 
ously limited the scope of compulsory licensing, because TRIPS does not limit 
such licensing to particular circumstances, as the EC proposal would have done. 
The Seattle WTO ministerial conference collapsed and never reached a conclusion. 
Nevertheless, since then, the effect of the globalization of patent rules on access to 
essential medicines has been on the agenda not only of the WHO, but of numerous 
trade and health forums, ultimately leading to the adoption of the declaration on 
TRIPS and public health at the Fourth Ministerial Conference of the WTO that took 
place in Doha, Qatar. The WTO Doha Declaration established the primacy of health 
over commercial interests after all. 



CONCLUSION 

Since 2001, as a result of the strengthened Revised Drug Strategy, the WHO's work 
program on pharmaceuticals and trade now includes the provision of policy guid- 
ance and information on intellectual property and health to countries for monitoring 
and analyzing the effects of TRIPS on access to medicines. 21 However, until today, 
the WHO leadership has been overly cautious in fulfilling this mandate. For exam- 
ple, the publication of guidance to countries about how to deal with pharmaceutical 



THE REVISED DRUG STRATEGY 137 



patents in case of access barriers remains problematic, and only one WHO staff 
member is working on intellectual property and medicines. The WHO director- 
general, Dr. Margaret Chan was initially critical of Thailand's decision in 2006 to 
issue compulsory licenses for three drugs on the national essential drugs list, 22 
despite the fact that this is a decision Thailand can lawfully make under interna- 
tional and Thai law. She urged the Thai government to enter into negotiations with 
pharmaceutical companies, a line that was being pushed by the United States and 
not required by law. 23 She reversed her position after heavy criticism from devel- 
oping countries, AIDS groups, and NGOs. 24 

Since then, Thailand has asked the WHO for technical assistance. The Thailand 
compulsory license case is illustrative of the failure of the WHO to this day to pro- 
vide both technical and political support to the use of the TRIPS flexibilities. This 
is all the more alarming since numerous World Health Assembly resolutions have 
asked the WHO director general to step up work in this field, and this work has 
been formally part of the WHO medicine strategy since the 1999 revisions of the 
Revised Drug Strategy. 

The story of the Revised Drug Strategy shows that even with all the right reso- 
lutions on the books, in the end, moving the health agenda forward also requires 
leadership and political courage. 



NOTES 

1 Andrew Chetley, A Healthy Business?: World Health and the Pharmaceutical Industry (Lon- 
don: Zed Books, 1990), pp. 94-106. 

2 See the HAI Web site at http://www.haiweb.org/index.html (last accessed March 16, 2009). 

3 WHO, The Rational Use of Drugs: Report of the Conference of Experts, Nairobi, November 
26-29, 1985. (Geneva: World Health Organization, 1987). 

4 See Peter Drahos's essay, "'IP World' — Made by TNC Inc.," in this volume. 

5 "International Conference on National Medicinal Drug Policies — The Way Forward," Austra- 
lian Prescriber 20, supplement 1 (1997). 

6 The meeting recommended: "Global (for example, WHO), regional and country efforts should 
be made to analyze and address the consequences of international harmonization, macro- 
economic changes, structural adjustment and international trade agreements (General Agree- 
ment on Tariffs and Trade/World Health Organization, Agreement on Trade Related Aspects 
of Intellectual Property Rights) on access, rational use of drugs, quality, safety and efficacy, 
local industrial development and other aspects of the national medicinal drug policy. Health 
issues should be considered as the policies are being formulated." Ibid. 

7 In the words of Jonathan Quick, the director of WHO's Action Program for Essential Drugs, 



138 



"The conference provided one of the sparks that eventually led to a lively and frank debate 
on affordability, quality, the impact of world trade agreements and other issues related to the 
WHO's RDS at the 49th WHA in May 1996." Ibid. 

8 World Health Organization, "Revised Drug Strategy Resolution," World Health Assembly 
Resolution WHA 49.14 (1996). 

9 German Velasquez and Pascale Boulet, Globalization and Access to Drugs: Perspectives on the 
WTO/TRIPS Agreement, 2nd. ed. (Geneva: WHO, 1999). 

10 Cable from the U.S. Mission in Geneva to the U.S. Department of State, May 27, 1998, avail- 
able on-line at http://www.cptech.org/ip/health/who/confidential.rtf (last accessed March 
17, 2009). 

11 European Commission (DGl), "Note on the WHO's Revised Drug Strategy" doc. no. 1/D/3/ 
BW D (98) (October 5, 1998), available on-line atwww.cptech.org/ip/health/who/eurds98. 
html (last accessed March 17, 2009). 

12 Executive Board, 103rd session, "Revised Drug Strategy. Report by the Chairman of the Ad 
Hoc Working Group." EB103/4, November 25, 1998, available on-line at http://www.cptech. 
org/ip/health/who/rds-report.html (last accessed March 17, 2009). 

13 The case generated an intense mobilization in favor of patients and against the industry, both 
nationally and internationally. It appeared as a striking example of the companies' greed and 
extremist attitude. On April 19, 2001, as they seemed close to losing the lawsuit, the firms 
dropped it. 

14 World Health Organization, Fifty-Second World Health Assembly, "Second Report of Com- 
mittee A (Draft)," May 24, 1999, WHA A52/38, available on-line at http://ftp.who.int/gb/ 
archive/pdf_files/WHA52/ew38.pdf (last accessed March 17, 2009). 

15 See Sangeeta Shashikant's essay, "The Doha Declaration on TRIPS and Public Health: An 
Impetus for Access to Medicines," in this volume. 

16 World Health Organization, "Scaling Up the Response to HIV/AIDS," World Health Assembly 
Resolution WHA 54.10 (2001); World Health Organization, "WHO Medicines Strategy," World 
Health Assembly Resolution WHA 54.11 (2001), both available on-line at http://www.cptech. 
org/ip/health/who/wha.html (last accessed March 18, 2009). 

17 See Article 7(e) of Decision 344, Common Regime on Industrial Property available on-line 
at http://www.sice.oas.org/trade/JUNAC/decisiones/DEC344e.asp (last accessed March 17, 
2009). 

18 World Trade Organization, "Preparations for the 1999 Ministerial Conference. Proposals 
Regarding the TRIPS Agreement. . . Communication from Venezuela, "August 6, 1999, avail- 
able on-line at http://www.wtocenter.org. tw/SmartKMS/fileviewer?id=627i4 (last accessed 
March 17, 2009). 

19 Common Working Paper of the EC, Hungary, Japan, Korea, Switzerland, and Turkey to the 
Seattle Ministerial Declaration 3 (November 29, 1999), available on-line at http://europa.eu/ 
rapid/pressReleasesAction.do?reference=DOC/99/l5&format=PDF&aged=l&language=EN&g 
uiLanguage=en (last accessed February 25, 2010). 

20 Michael Scholtz, "Views and Perspectives on Compulsory Licensing," Conference on AIDS 
and Essential Medicines and Compulsory Licensing, Geneva, March 27-29, 1999, available on- 
line at http://www.haiweb.org/campaign/cl/scholtz.html (last accessed March 18, 2009). 

21 World Health Organization, "Technical Cooperation Activities: Information from Other Inter- 
governmental Organizations," WHO doc. no. IP/C/W/305/Add.3 (September 25, 2001). 



THE REVISED DRUG STRATEGY 139 



22 See Jiraporn Limpananont and Kannikar Kijtiw ate ha kill's essay, "TRIPS Flexibilities in Thai- 
land: Between Law and Politics," in this volume. 

23 Apiradee Treerutkuarkul, "WHO Raps Compulsory Licensing Plan: Govt. Urged to Seek Talks 
with Drug Firms," Bangkok Post, February 2, 2007, available on-line at http://www. aegis. 
com/news/bp/2007/bp07020l.html (last accessed March 18, 2009). 

24 Letter sent by Dr. Margaret Chan, director general of the World Health Organization, to Dr. 
Mongkol Na Songkhla, the Thailand minister of public health, February 7, 2007, available 
on-line at http://lists.essential.org/pipermail/ip-health/2007-February/oio538.html (last 
accessed March 18, 2009); Piyaporn Wongruang, "Move to Break Drug Patents Lauded — 
Experts: WHO Should Back Thai Intentions," Bangkok Post, February 3, 2007, available on- 
line at http://www.aegis.org/news/bp/2007/BP070203.html (last accessed March 18, 2009); 
Paul Cawthorne, et al, "WHO Must Defend Patients' Interests, Not Industry," Lancet 369, no. 
9566 (March 24, 2007): pp. 974~75, available on-line at http://www.thelancet.com/journals/ 
lancet/issue/current?tab=past (last accessed March 19, 2009). 



140 



The Doha Declaration on TRIPS and Public Health: 
An Impetus for Access to Medicines 

Sangeeta Shashikant 



Today approximately two billion people worldwide — one-third of the world's pop- 
ulation—do not have access to the essential medicines they need. In some of the 
lowest-income countries in Africa and Asia, this figure rises to more than half of 
the population. 

These statistics reveal that despite the significant technological advances made 
by humankind in the medical field, getting medicines to those who need them 
remains a major challenge for the international community. Access to essential 
medicines, a fundamental element of the universal human right to health, depends 
on several factors, such as prices, rational medicine-selection processes, sustain- 
able financing, and reliable health-care and supply systems. 1 

However, the price factor can be determinative all by itself, and price is liter- 
ally a matter of life or death when a deadly disease is treatable. It also can deter- 
mine whether the government will be able to provide treatment to its people or 
whether an individual will be able to obtain the treatment that he or she requires. 
The problem of high prices has been observed by the international community in 
the context of treatable infectious diseases such as HIV/AIDS and malaria. For 
example, in 2000, for a triple-combination antiretroviral treatment of stavudine 
(d4T) plus lamivudine (3TC) plus nevirapine (NVP), the price of the lowest-priced 
branded treatment was about $10,439 for a year's supply 2 The high price tag meant 
patients living with HIV/AIDS would not be able to afford treatment and would 
be condemned to death. However, the availability of generic versions of branded 
medicines led to significant price reductions. In 2001, Cipla Ltd., a generic producer 
based in India, offered the same combination for $350. Over time, with more com- 
petition, this cost has been reduced to $99. 3 Reduced prices for antiretroviral treat- 
ment have been a crucial factor in the scaling up of HIV/AIDS treatment. 

As can be seen from the example of HIV/AIDS, competition among mul- 
tiple manufacturers is essentially the reason for reduced prices. However, the 



141 



existence of competition has very much been threatened since the coming into 
force of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agree- 
ment of the World Trade Organization (WTO) in 1995. TRIPS for the first time set 
out minimum standards and requirements for the protection of intellectual prop- 
erty rights — for example, trademarks, copyrights, and patents. It obliges all WTO 
members to adopt and to enforce high standards of intellectual property protec- 
tion derived from the standards used in developed countries, except where pro- 
vision for a transition period that delays the implementation of the agreement 
is made. 4 

Many development experts are of the view that TRIPS has very significantly 
tilted the balance in favor of the holders of intellectual property rights, most of 
whom are in developed countries, vis-a-vis consumers and local producers in 
developing countries and vis-a-vis development interests. 5 The minimum twenty- 
year patent protection required by TRIPS allows a pharmaceutical company 
monopoly over the production, marketing, and pricing of patent-protected medi- 
cines. This period can be further extended by the company through the use of 
various strategies, such as applying for patents on usage, dosage, or combinations 
of drugs —a practice commonly known as "evergreening," 6 thus keeping the drug 
free from competition and enabling high pricing. TRIPS further mandates that pat- 
ents have to be given for both products and processes in all fields of technology 7 
Whereas previously, many developing countries excluded crucial sectors such as 
medicines and chemicals from patentability, this is no longer an option. By vir- 
tue of TRIPS protection, no generic equivalent can come into the market until the 
twenty years of patent protection have expired unless TRIPS flexibilities — mea- 
sures such as compulsory licensing or parallel importation of drugs, exceptions 
to patent rights, exclusions from patentability, and transition periods — are used, 8 
thus denying patients cheaper alternatives. 

While the situation was problematic prior to 2005, it is anticipated that it will 
worsen in the years to come. Medecins Sans Frontieres (MSF) is already talking 
about the "return of the price crisis" that was seen in 2000, when life-saving anti- 
retrovirals were priced out of reach of those in need. For example, introducing 
more recent drugs in anti-AIDS combination therapy because of the emergence 
of resistance to older treatment would today increase the annual cost of treating 
an adult for one year in a developing country from $99 to $426. Since everyone in 
therapy today is expected to need these newer therapies at some point, the escala- 
tion in cost will have dire consequences for AIDS programs. 

The main reason why cheaper generic alternatives were possible for older 
antiretroviral products is that there were no patents in some developing coun- 
tries with vibrant generic pharmaceutical industries. India, for example, was free 



142 SHASHIKANT 



from product patents for medicines used to manufacture and supply generic medi- 
cines to the rest of the world. However, beginning in 2005, India, known as the 
pharmacy of the world, has had to comply with its TRIPS obligations and permit 
the patenting of pharmaceutical products. Therefore, the possibility of supplying 
affordable generic medicines in the future for new drugs seems rather bleak. 9 

Such concerns about TRIPS and its overall impact on access to affordable 
medicines sparked an international debate. Public-health crises afflicting many 
countries in the developing world, particularly in sub-Saharan Africa, and the 
strong-arming of developing countries by developed countries fuelled the debate, 
focusing intense public attention on the manner in which intellectual property 
protection affected people's lives and governments' ability to take measures to 
protect public health. 

THE DOHA NEGOTIATIONS 

The TRIPS Agreement is the result of a process of intense negotiations during the 
Uruguay Round of the General Agreement on Tariffs and Trade. It thus reflects an 
uneasy, delicate compromise between the developed countries, which sought high 
levels of intellectual property protection, and the developing countries, which 
sought to ensure that a degree of flexibility or policy autonomy was retained in 
interpreting and implementing TRIPS. Initially, the developing countries resisted 
inclusion of an agreement on intellectual property protection as part of the WTO 
agreements, but later accepted it in exchange for gains they hoped to obtain in 
other areas, such as agriculture. 10 

Thus, during implementation of the agreement, the differing socioeconomic and 
political interests of the WTO members resulted in differing interpretations of cer- 
tain provisions in the TRIPS Agreement, leading to tensions between the develop- 
ing countries, which wished to make use of flexibilities such as compulsory licens- 
ing, parallel importation, 11 and so on for purposes of improving access to affordable 
medicines, and the major developed countries, as well as their pharmaceutical 
industries, which did not wish to see the developing countries exercise their rights. 

As a result of these tensions, in February 1998, the South Africa Pharmaceu- 
tical Manufacturers Association and thirty-nine other pharmaceutical manu- 
facturers, mostly multinational, brought a lawsuit against the South African 
government for allegedly violating the TRIPS Agreement and the South African 
Constitution. The government had introduced an amendment to its 1997 Medicines 
and Related Substances Control Act to include provisions such as the substitu- 
tion of generics for out-of-patent medicines, as well as transparent pricing and 
parallel importation. 



THE DOHA DECLARATION 143 



Activists worldwide, led by the South African Treatment Action Campaign, an 
AIDS activist organization, rallied in support of the South African government. To 
protest against the lawsuit, these activists held rallies in different key cities, sent 
letters to the plaintiffs in the South African lawsuit and other influential officials, 
made joint statements, and held press conferences condemning the industry's 
attempt to derail implementation of the Medicines Act and demanding that the 
companies withdraw the lawsuit. 

Various other groups also mounted direct-action campaigns against the compa- 
nies. For example, activists from ACT UP New York, ACT UP Philadelphia, and the 
Health GAP (Global Access Project) Coalition occupied GlaxoSmithKline's investor- 
relations office in Manhattan, using chains to lock down the office. 12 GlaxoSmith- 
Kline was a lead plaintiff in the lawsuit. The suit soon became a public-relations 
nightmare for the companies, and they finally withdrew it in 2001. 13 Public pres- 
sure also forced developed-country governments such as the United States and 
those in Europe that were initially supportive of the industry's action to withdraw 
their support. 

In one instance, strategically savvy AIDS activists disrupted Vice President Al 
Gore's presidential campaign with a series of protests over his support for the U.S. 
policy of pressuring countries such as South Africa not to use TRIPS flexibilities. 
Demonstrations organized by ACT UP and the national coalition AIDS Drugs for 
Africa saw activists waving banners dubbing the Gore 2000 campaign "Apartheid 
2000" and declaring "Gore's Greed Kills." 14 "On one occasion," Karine Cunqueiro 
notes, "demonstrators displayed a life-size marionette of Gore, the strings of which 
were manipulated by effigies of drug-company executives." 15 These actions placed 
the issue in national media and on the national political scene, eventually leading 
to the U.S. government's withdrawal of its support for the lawsuit. 16 

In 2001, the United States initiated a complaint against Brazil in the WTO dis- 
pute-settlement system over Brazil's national law on compulsory licensing, which 
included a "local working" requirement. Under that provision, holders of patent 
rights in Brazil are required to manufacture the protected product in the country. 
If companies do not follow this requirement, after three years, Brazil can issue 
a compulsory license. The United States argued that the law violated the TRIPS 
Agreement by discriminating against U.S. patent owners and restricting patent 
holders' rights. Brazil responded that the law was consistent with the provisions 
and spirit of TRIPS, as well as with the Paris Convention for the Protection of 
Industrial Property 17 

The complaint by the United States to the WTO was seen as a "warning shot" 
by the Bush Administration to the developing countries that had hopes of using 
the flexibilities provided by the TRIPS Agreement and South-South cooperation 



144 SHASHIKANT 



to develop local pharmaceutical production capabilities and to break their depen- 
dence on multinational pharmaceutical companies. 18 The U.S. actions brought 
fierce pressure from the international NGO community concerned about the nega- 
tive effect of the complaint on Brazil's successful AIDS program and on South- 
South cooperation to ensure a sustainable supply of generic medicines. 19 MSF 
issued an international press release warning that the U.S. action at the WTO not 
only threatened Brazilian AIDS policy, but would "also intimidate countries which 
would like to take up Brazil's offer to help them produce AIDS medicines." 20 The 
Treatment Action Campaign also issued a statement denouncing the WTO com- 
plaint as an attempt "to destroy Brazil's generic pharmaceutical industry," charg- 
ing that "it will not only hamper access to medicines for Brazil's 500,000 people 
with HIV, but also many Third World countries which are hoping to import Brazil's 
cheap medicines and to accept Brazil's offer of knowledge transfer." 21 The US with- 
drew the complaint in June 2001. 

These events are only two of the more prominent manifestations of the con- 
flicts arising from differing interpretations of the TRIPS provisions and from 
political and economic pressure asserted by the United States and other devel- 
oped countries against developing countries to change policies in favor of their 
pharmaceutical industries. 22 The conflicts and the vocal voice of the international 
NGO community highlighted the importance of reaching a common understanding 
about TRIPS and WTO members' right to take measures to promote public health. 
Pronouncements on the issue of trade and health by international organizations 
such as the WHO, the UN Sub-Commission for the Protection and Promotion of 
Human Rights, and the United Nations Development Program also added impetus 
to the movement for access to affordable medicines. 23 

On June 20, 2001, for the first time ever, the WTO Council for TRIPS held a 
special session on TRIPS and public health. 24 This historic meeting was a response 
to the Africa Group's call at the TRIPS Council to confront the problem of access to 
medicines due to high prices resulting from intellectual property protection and to 
discuss the interpretation and application of the relevant provisions of the TRIPS 
Agreement with a view to clarifying flexibilities by which members are entitled to 
gain access to medicines. Fifty developing countries put forward a joint paper pre- 
senting their common legal understanding of some of the TRIPS Agreement's key 
provisions (that is, its objectives, principles, nature, and scope), and of the agree- 
ment's requirements for the protection of undisclosed information and patent flex- 
ibilities such as compulsory licensing and parallel importation. 25 Such an initiative 
was a key move in a context in which, on a regular basis through the press and by 
other means, the developed countries and pharmaceutical companies were misrep- 
resenting TRIPS flexibilities as much narrower than they were. 



THE DOHA DECLARATION 145 



Zimbabwe, on behalf of the Africa Group, proposed that the Doha Ministe- 
rial Conference to be convened later in the same year issue a special declaration 
to affirm a common understanding that the TRIPS Agreement does not prevent 
members from taking measures to protect public health, adding that "this assur- 
ance and guarantee was needed to enable governments to adopt measures to pro- 
tect public health, without fear of litigation, at national level or at the WTO, or 
bilateral pressures being applied on them." 26 NGO activities at national, regional, 
and international levels heightened the urgency of the need to heed the call of the 
developing countries. For example, on the eve of the special session, more than 
one hundred NGOs, led by MSF, Oxfam, and the Third World Network, called for 
a "pro-public health" interpretation of the TRIPS agreement and the use of TRIPS 
safeguards and exceptions. Some civil-society groups in the Global South went as 
far as to request that the TRIPS Agreement be taken out of the WTO. 27 

The reaction of the developed countries at the first special session to the stance 
taken by the developing countries was mixed, varying from acceptance to plain 
opposition. Norway was perhaps the most supportive of the developing countries' 
positions. On the links between patents, price, and access to medicines, it recog- 
nized that the price of medicines "does make a difference," especially in the case 
of poor people in developing countries who have to pay out of pocket for health 
care. It also agreed on the need for more legal clarity on the TRIPS provisions. The 
US took a hard-line position that strong patent regimes can produce benefits for 
developed and developing countries and refused to acknowledge the concerns of 
developing countries over TRIPS implementation and access to affordable medi- 
cines. 28 It also challenged proposals put forward by the developing countries. A 
U.S. representative is reported to have said that "as long as you cannot come up 
with concrete examples, we remain unconvinced of the problem." 29 The European 
Commission agreed on a number of points put forward by the developing coun- 
tries. However its position was received with much skepticism by many developing 
countries and NGOs, because there was concern that the issue of TRIPS and public 
health would be used as part of a negotiating strategy to be traded against other 
issues during the Doha Ministerial Conference. Overall one clear message of the 
industrialized countries was that they would not agree to any diminution in the 
TRIPS standard of intellectual property protection. 30 

Despite the hard-line positions taken by some developed countries, determined 
developing countries with support from NGOs persisted jointly in advocating for 
a favorable outcome. At a meeting in September, the Africa Group, with nineteen 
other developing countries, presented a draft text for a ministerial declaration on 
TRIPS and public health. It proposed political principles that would ensure that 
TRIPS would not undermine the legitimate right of WTO members to formulate 



146 SHASHIKANT 



their own public-health policies and provided clarifications for provisions related to 
compulsory licensing, parallel importation, protection of undisclosed information, 
and production for export to a country with insufficient production capacity. 31 

The United States, Japan, Switzerland, Australia, and Canada circulated an 
alternate draft, stressing the importance of intellectual property protection for 
research and development and arguing that intellectual property contributes to 
public-health objectives globally It further sought to limit the use of flexibilities to 
crisis and emergency situations. 

The different proposed texts became the basis of engagement between a key 
group of some twenty delegations from developing and developed countries, but 
with little result. The parties repeatedly arrived at a deadlock. Major industrial- 
ized nations blocked language that would declare that "nothing in the TRIPS shall 
prevent Members from taking measures to protect public health" and instead 
insisted on formulations that would restrict flexibilities available to the developing 
countries. 32 The deadlock continued into the Doha Ministerial Conference, because 
the developing countries refused to be fobbed off with a declaration that had no 
value added and that in fact sought to restrict or to reduce the currently available 
flexibilities. 33 

During the Doha preparatory meetings, the United States and others (often 
sounded out for compromise by the WTO Secretariat), proposed language to the 
effect that the declaration would be "without prejudice to the rights" or would 
"preserve the rights" or should not be construed as "adding to or diminishing the 
rights" of the developed countries under the TRIPS Agreement for fear that the 
declaration could lead to changes in TRIPS. Key developing-country negotiators 
felt that if these terms were accepted, it would make "nonsense" of the declara- 
tion. 34 In the final agreed-upon text of the declaration, none of these elements are 
included. From the beginning, the aim of the developing countries was to obtain 
recognition that nothing in the TRIPS Agreement should be interpreted as pre- 
venting members from adopting measures necessary to protect public health. 35 
They were frustrated by the opposition and pressure exerted on the developing 
countries by the pharmaceutical industry of the developed countries, backed by 
their governments. 

NGOs such as MSF, Oxfam, and the Third World Network also kept pressure on 
the industrialized countries, charging them with echoing the views of the pharma- 
ceutical companies and with frustrating developing-country efforts at the WTO to 
improve access to medicines in poor countries. 36 

The chair of the WTO General Council, Stuart Harbinson, presented a text with 
two options, which became the basis for Doha negotiations. The first option: 



THE DOHA DECLARATION 147 



Nothing in the TRIPS Agreement shall prevent Members from taking measures to 
protect public health. Accordingly, while reiterating our commitment to the TRIPS 
Agreement, we affirm that the Agreement shall be interpreted and implemented in a 
manner supportive of WTO Members' right to protect public health and, in particu- 
lar, to ensure access to medicines for all. 

In this connection, we reaffirm the right of WTO Members to use, to the full, the 
provisions in the TRIPS Agreement which provide flexibility for this purpose. 

The second option: 

We affirm a Member's ability to use, to the full, the provisions in the TRIPS Agree- 
ment which provide flexibility to address public health crises such as HIV/AIDS and 
other pandemics, and to that end, that a Member is able to take measures neces- 
sary to address these public health crises, in particular to secure affordable access 
to medicines. Further, we agree that this Declaration does not add to or diminish the 
rights and obligations of Members provided in the TRIPS Agreement. With a view to 
facilitating the use of this flexibility by providing greater certainty, we agree on the 
following clarifications. 

The first option was widely supported by the developing countries and public- 
interest civil-society groups. The United States, Switzerland, Japan, Australia, 
Canada, Korea, and some other developed countries supported the second option, 
because they viewed the first one as attempting to override the TRIPS rules. 37 

The second option, while seemingly meeting public-health concerns, reduces 
the rights of member countries to take actions on grounds of public health by 
narrowing those rights only to situations of "pandemics," which health special- 
ists describe as diseases that are universal or affect populations across countries 
and continents. However, the position of the Western countries was hard to main- 
tain for very long in light of the fact that prior to the Doha Ministerial Confer- 
ence, Canada and United States had threatened to override Bayer AG's patent on 
the antibiotic ciprofloxacine (Cipro™) to deal with the shortage and high price of 
the product following letter-born anthrax attacks in 2001. 38 Brazil, India, and the 
Africa Group used the occasion to argue that they should be allowed the same 
discretion when it came to patented drugs for AIDS and other diseases. Health 
activists took the opportunity to highlight the hypocrisy and double standards of 
industrialized countries. 39 

After days of negotiation in Doha, members settled on a compromise text, 
which now forms paragraph 4 of the Doha Declaration: 40 

We agree that the TRIPS Agreement does not and should not prevent Members 
from taking measures to protect public health. Accordingly, while reiterating our 



148 SHASHIKANT 



commitment to the TRIPS Agreement, we affirm that the Agreement can and should 
be interpreted and implemented in a manner supportive of WTO Members' right to 
protect public health and, in particular, to promote access to medicines for all. 

In this connection, we reaffirm the right of WTO members to use, to the full, the 
provisions in the TRIPS Agreement, which provide flexibility for this purpose. 

The second part of the paragraph confirms one of the key points pushed by the 
developing countries: that in implementing the TRIPS Agreement at the national 
level, there is flexibility, and thus room to maneuver, to meet public health needs. 

In the context of paragraph 4, the declaration then goes on to reaffirm coun- 
tries' right to grant compulsory licenses, as well as "the freedom to determine the 
grounds upon which such licenses are granted," including "the right to determine 
what constitutes a national emergency or other circumstances of extreme urgency," 
both of which are grounds for issuing compulsory licenses. It adds, "public health 
crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epi- 
demics, can represent a national emergency or other circumstances of extreme 
urgency." It also reaffirms the right of members freely to establish their regimes for 
defining when the rights of a holder of intellectual property are exhausted. 41 

An issue that was not resolved in Doha, but that the Doha Declaration acknowl- 
edges, is the problem of WTO members with insufficient or no manufacturing 
capacities in the pharmaceutical sector facing difficulties in making effective use of 
compulsory licensing under the TRIPS Agreement. 42 The problem, which has since 
come to be known as the "paragraph 6 problem," is that most developing coun- 
tries have inadequate or no manufacturing capacity, and those that do, once they 
implemented the TRIPS Agreement in 2005 (due to the expiration of the transition 
period) and thus allowed the patenting of pharmaceuticals, would not be able to 
meet the needs of other countries. This was because of a condition in the TRIPS 
Agreement that when a compulsory license is issued, the license shall be predomi- 
nantly for domestic supply, 43 thus restricting the amount that may be exported. 

Discussion on the solution to the paragraph 6 problem was the subject of heated 
debates in the WTO between 2001 and 2005. 44 Although the matter was eventu- 
ally resolved in 2003 through a WTO decision of August 30, 2003, 45 which later, in 
2005, 46 was accepted by WTO members as an amendment to the TRIPS Agreement, 
the solution agreed to by member states has been criticized severely by public- 
health groups for being burdensome to both exporting and importing countries. 47 

A major achievement, however was the agreement not to limit the declara- 
tion to a list of diseases. The final text recognizes "the gravity of the public health 
problems afflicting many developing and least-developed countries, especially 
those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics." 48 



THE DOHA DECLARATION 149 



There were other victories for the developing countries in the declaration, as 
well. It extended the transition period for least-developed countries, so that they 
did not have to implement provisions on patent protection for pharmaceuticals 
and protection of undisclosed information until 2016, without prejudice to the 
right to seek other extensions. 49 Initially, the deadline for the transition period for 
least-developed countries was 2006. It also recognized concerns about the effects 
of intellectual property rights on prices, although on the insistence of developed 
countries, a statement about the importance of the intellectual property system 
prefaces the acknowledgement. 

THE ROLE OF NCOS IN THE ACCESS DEBATE 

It is undeniable that campaigning by the NGO community contributed signifi- 
cantly to greater awareness and heightened discussion about TRIPS and its effects 
on access to affordable medicines and to the Doha outcome on TRIPS and public 
health. In fact, one factor that led to the developing countries forming a coalition 
and making demands in the WTO was NGO activism and lobbying, as well as the 
media publicity surrounding the issue of access. 

NGOs raised awareness internationally about high drug prices, about the 
reduced availability of quality generic alternatives, about inadequate research 
and development into tropical diseases, about bilateral pressures on the devel- 
oping countries to adopt patent protection that would exceed the TRIPS require- 
ments, and about the double standards practiced by the developed countries, as 
well as the bullying tactics of the pharmaceutical industry and several developed 
countries. They drew attention to TRIPS provisions that could be used to increase 
access, debunked myths put forward by the pharmaceutical industry and the 
developed countries, and shamed individuals, entities, and even countries that 
stood in the way of better access to affordable medicines for people living in 
developing countries. 

In March 1999, in Geneva, NGOs (the Consumer Project on Technology, Health 
Action International, and MSF) organized the first international meeting specifi- 
cally on the use of compulsory licensing to increase access to AIDS medicines. 50 
Later, in November, the same group organized Increasing Access to Essential Drugs 
in a Globalized Economy, a conference in Amsterdam that brought together 350 par- 
ticipants from fifty countries on the eve of the Seattle WTO Ministerial Conference. 
Another significant event was the Oxfam workshop on TRIPS in Brussels in March 
2001, which was attended by NGOs, experts, and diplomats. 

These meetings are a part of many other important collaborative initiatives by 
national and international advocates from the Global North and South, such as 



150 SHASHIKANT 



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the Consumer Project on Technology, MSF, Oxfam, Act Up-Paris, Health GAP, the 
South African Treatment Action Campaign, the Third World Network, and others 
to raise awareness about concerns regarding TRIPS and to call for urgent action 
by WTO members. These meetings created awareness among NGOs and diplomats 
from Geneva, mobilized a variety of NGOs around the issue of intellectual prop- 
erty and access to medicines, and fostered a common NGO front. 

Information disseminated by NGOs helped counter claims by the pharmaceu- 
tical industry and by industry-funded entities, as well as by developed-country 
governments; provided concrete arguments, as well as examples, concerning the 
threat posed by patents to access to affordable medicines, and raised awareness of 
the available flexibilities in the TRIPS Agreement, which proved invaluable, par- 
ticularly in launching the access issue in the WTO and in the run-up to the Doha 
Declaration. 

MSF issued a report on market and public-policy failures leading to research- 
and-development spending by the pharmaceutical industry on rich-country 
lifestyle preoccupations (obesity, impotence, etc.) or me-too drugs (medicines 
with very slight difference over existing compounds and involving no 'inven- 
tion' or clinical advance) and a virtually empty pipeline of drugs for neglected 
diseases, thus countering claims that intellectual property protection encour- 
ages innovation and research into diseases and availability of medicines. 51 



THE DOHA DECLARATION 



151 



Oxfam provided a briefing paper showing how the TRIPS rules would raise 
the costs of vital medicines, with potentially disastrous implications for 
poor countries. 52 

NGOs also argued that the majority of important HIV/AIDS drugs were actu- 
ally developed by the public National Institutes of Health and funded by taxpay- 
ers' dollars, 53 and by way of concrete examples, they showed the threat of patents 
to access to affordable medicines, 54 rebutting claims that companies spend $500 
to $800 million to develop a drug and that patents are not an important barrier to 
accessing antiretroviral drugs in African countries. 55 

To keep up the pressure on the developed countries that were taking a hard 
position during Doha negotiations, NGOs issued sign-on statements supporting 
developing-country positions, mobilized media to investigate the issue of patents 
and access and to write about it, and "named and shamed" countries, individu- 
als, companies and any other entity that stood in the way of access to medicines. 
Through actions such as phone calls, e-mails, and faxes, NGOs also repeatedly 
placed pressure on the WTO Secretariat and its then director general, Mike Moore, 
to acknowledge the right of developing countries to make use of the TRIPS flex- 
ibilities. NGO actions grabbed media attention and created waves that Southern 
and Northern governments simply could not ignore. Developed countries learned 
that they could not get away with exerting trade pressures on developing coun- 
tries or taking unfavorable positions without feeling repercussions, particularly 
back in their home countries. 56 The campaigns also had some effect in persuading 
developed countries such as the members of the European Commission to rethink 
the proindustry stance they had taken. 57 

The developing countries also relied substantially on the input and expertise 
of some civil-society groups in the formulation of papers and arguments for dis- 
cussion and the drafting of texts during negotiations. The influence of documents 
prepared by civil-society groups led the United States to remark during the special 
session that members should "avoid documents circulated by other individuals and 
organisations that lack the WTO's expertise." 58 Without a doubt, close collabora- 
tion between civil-society groups and developing countries before and during the 
Doha Ministerial Conference was a pivotal factor in the success achieved there. 

CONCLUSION: THE SIGNIFICANCE OF THE DOHA DECLARATION 

The Doha Declaration represents a major political victory for the developing coun- 
tries. Although it is only a political statement and does not modify the TRIPS 
Agreement in any way, it has important legal implications. It provides an under- 
standing of the purpose of the TRIPS Agreement in relation to public-health issues 



152 SHASHIKANT 



that should guide any future rulings by WTO dispute-resolution panels dealing 
with such issues. 59 The declaration gave developing-country governments a degree 
of security in adopting national-level measures necessary to meet public-health 
objectives, and several developing countries, such as Malaysia, Thailand, Indo- 
nesia, Brazil, Zimbabwe, and Ghana, have since taken advantage of compulsory 
licensing to gain access to affordable generic medicines. 60 Many countries have 
also amended their laws to include the various TRIPS flexibilities. 

To the NGO community, despite the disappointment that the outcome was not 
as strong or as legally binding as they had expected, the declaration was a big step 
forward in the battle for affordable medicines. Today, the declaration has become 
a common rallying platform for NGOs in persuading developing-country govern- 
ments to take action to access affordable medicines and in holding developed- 
country governments accountable for what they agreed to in Doha, particularly 
that "the TRIPS Agreement does not and should not prevent Members from taking 
measures to protect public health" and that "the Agreement can and should be 
interpreted to protect public health and in particular, to promote access to medi- 
cines for all." The declaration is also invoked systematically by NGOs, policy mak- 
ers, and others to counter developed countries' actions to pressure developing 
countries through trade, partnership, and investment agreements and their unilat- 
eral pressures to adopt intellectual property standards that go beyond the TRIPS 
Agreement. 

The Doha Declaration was adopted for many reasons. However, a particularly 
notable reason is that a cohesive group of developing countries emerged to articu- 
late their concerns about the effects of the TRIPS Agreement on access to medi- 
cines and to advocate a common position. These countries were well prepared, and 
with the support of NGOs, which maintained continuous pressure on the inter- 
national community to do something concrete, mounted a strong case for urgent 
action in the WTO to address the TRIPS drugs issue and an interpretation of the 
TRIPS Agreement that enables national public-health measures. 

The declaration evinces the possibility of winning a significant victory by 
advocates of access to knowledge, even in the face of strong opposition, when alli- 
ances are formed among developing countries and with concerned NGOs on major 
public-policy issues that need attention. The strategies and tactics used by NGOs 
and developing countries in the access debate, the collaboration between NGO 
groups from the Global North and the Global South, and the strategic collaboration 
between NGOs and developing countries provide very useful guidance and insight 
for those working on other issues in the access to knowledge movement. 



THE DOHA DECLARATION 153 



NOTES 

1 See World Health Organization, The World Medicines Situation (2004), ch. 7, available on-line 
at http://www.who.int/medicinedocs/collect/medicinedocs/pdf/s6l60e/s6l60e.pdf (last 
accessed March 19, 2009). 

2 See Medecins Sans Frontieres, Untangling the Web of Price Reductions, 10th ed. (July 2007) 
available on-line at http://www.msfaccess.org/fileadmin/user_upload/diseases/hiv-aids/ 
Untangling_the_Web/UTWlo_RSep_horizontal.pdf (last accessed March 19, 2009). 

3 Ibid., p. 5. 

4 The TRIPS Agreement is available on-line at http://www.wto.org/english/tratop_e/ 
trips_e/t_agmo_e.htm (last accessed March 22, 2009). Three transition periods are pro- 
vided for in the Agreement: the period from 1995 to 2000, at the end of which developing 
countries were obliged to implement the TRIPS Agreement; the period from 2000 to 2005, 
which provided an additional period of five years in which to put in place product patent 
protection for pharmaceuticals or agrochemicals in those countries without such protection 
at the entry into force of the agreement; and the period from 1995 to 2006, after which least- 
developed countries would be required to implement their TRIPS obligations (Articles 65 and 
66 of TRIPS Agreement). Presently only least-developed countries have transition periods 
after an additional extension was allowed in 2001. That is, a least-developed country need 
not apply TRIPS provisions until July 1, 2013 or until it ceases to be a least-developed coun- 
try, if that period is shorter than the former; and least-developed countries do not have to 
implement and apply the TRIPS provisions on patents (Section 5) and on protection of undis- 
closed information (Section 7) until January l, 2016. See World Trade Organization, Council 
for Trade-Related Aspects of Intellectual Property Rights, "Extension of the Transition Period 
under Article 66.1 for Least-Developed Country Members" (November 30, 2005), WTO doc. 
no. IP/C/40, available on-line at http://www.tripsagreement.net/documents/GATTdocs/ 
Decision_of_the_Council_for_TRIPS_of_29_November_2005_E.doc (last accessed March 19, 
2009) and World Trade Organization, "Extension of the Transition Period under Article 66.1 
of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with 
Respect to Pharmaceutical Products," July l, 2002, WTO doc. no. IP/C/25, available on-line 
at http://www.wto.org/english/tratop_e/TRIPs_e/art66_l_e.htm (last accessed March 19, 
2009). 

5 See Carlos M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The 
TRIPS Agreement and Policy Options (London: Zed Books, 2000); Commission on Intellectual 
Property Rights, Integrating Intellectual Property Rights and Development Policy (September 
2002), available on-line at http://www.iprcommission.org/graphic/documents/final_report. 
htm (last accessed March 19, 2009). 

6 "Evergreening" is a term popularly used to describe patenting strategies that are intended to 
extend the patent term on the same compound. See World Health Organization Commission 
on Intellectual Property, Innovation and Health, Public Health: Innovation and Intellectual 
Property Rights (April 2006), p. 148, available on-line at http://www.who.int/intellectual- 
property/documents/thereport/ENPublicHealthReport.pdf (last accessed March 22, 2009). 

7 See Article 27 of the TRIPS Agreement. 

8 See Sisule Musungu and Cecilia Oh, The Use of Flexibilities in TRIPS by Developing Countries: 
Can They Promote Access to Medicines? (Geneva: South Centre and WHO, 2006) available on- 
line at http://www.southcentre.org/index.php?option=com_content&task=view&id=70&Ite 



154 SHASHIKANT 



mid=67 (last accessed March 22, 2009). A compulsory license is a license issued by the govern- 
ment to allow the use of patented inventions without the consent of the patent holder. It is one 
of the flexibilities in the TRIPS Agreement. Parallel importation is the importation and resale 
in a country without the consent of the patent holder of a patented product that has been 
legitimately put on the market of the exporting country under a parallel patent. For example, if 
a patented antiretroviral cost $5.00 per tablet in Country X and the same patented medicine is 
sold in Country Y for $1.00 per tablet, then Country X could parallel import from Country Y the 
same medicine, since it is cheaper, and do so without the consent of the patent holder. 

9 Medecins Sans Frontieres, Untangling the Web of Price Reductions, 10th ed., p. 8. See Chan 
Park and Leena Menghaney's essay, "TRIPS Flexibilities: The Scope of Patentability and 
Oppositions to Patents in India," in this volume. 

10 J. Michael Finger, The Doha Agenda and Development: A View from the Uruguay Round 
(Manila: Asian Development Bank, 2002), available on-line at http://www.adb.org/Docu- 
ments/ERD/Working_Papers/WP02l.pdf (last accessed March 22, 2009). "The Uruguay 
Round grand bargain was that developing countries would take on obligations in the new 
areas and in exchange developed countries would provide better access to their markets, par- 
ticularly on agricultural products and on textiles and clothing. Comparing. . . the net gains 
from changed patent obligations with the gains from Uruguay Round liberalization of tariffs 
on industrial goods by all WTO Members shows that TRIPS-patents are worth thirteen times 
more to the US than is the Uruguay Round tariff package on industrial goods" (pp. 11-12). 

11 See Musungu and Oh, The Use of Flexibilities in TRIPS by Developing Countries. 

12 ACT UP Press Release, AIDS activists take over GlaxoSmithKline Investor Relations Office: 
Expose company-wide policy of blocking generic AIDS drug access (February 2001) available at 
http://www.healthgap.org/press_releases/oi/022iol_AU_PR_GLAXO_NYC.html. 

13 See Tido von Schoen Angerer, David Wilson, Nathan Ford, and Toby Kasper, 'Access and 
Activism: The Provision of Antiretroviral Therapy in Developing Countries," AIDS 15, supple- 
ment 4 (2001): pp. S81-S90. 

14 See Karine Cunqueiro, "Hostile AIDS Activists Target Gore over Patents," available on-line at 
http://www.twnside.org.sg/title/gore-cn.htm (last accessed March 22, 2009). 

15 Ibid. 

16 See Russell Mokhiber and Robert Weissman, "The Drug Lords Defeated," available on-line at 
http://www.twnside.org.sg/title/lords-cn.htm (last accessed March 22, 2009). 

17 The Paris Convention for the Protection of Industrial Property is available on-line at http:// 
www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html (last accessed March 23, 2009). 

18 Gretchen Small, "Brazil Battles for Right of All Nations to Affordable Medicines," Execu- 
tive Intelligence Review, March 23, 2001, available on-line at http://www.larouchepub.com/ 
other/200l/28l2BrazilAIDS.html (last accessed March 23, 2009). In 2000, at an international 
AIDS conference in Durban, South Africa, Brazil had offered to provide assistance to other 
developing countries committed to providing universal access to medicines by offering to 
help them build their own laboratories and to train people to run them. In December 2000, 
the health ministers of South Africa and Brazil had signed a letter of intent for cooperation. 

19 See Ellen 't Hoen, "TRIPS: Pharmaceutical Patents and Access to Essential Medicines, Seattle, 
Doha and Beyond" (2003), p. 45, available on-line at http: //www. accessmed-msf.org/fileadmin/ 
user_upload/medinnov_accesspatents/chicagojournalthoen.pdf (last accessed March 23, 
2009). Since the mid-1990s, Brazil has offered comprehensive AIDS care, including universal 



THE DOHA DECLARATION 155 



access to antiretroviral treatment. An estimated 536,000 people are infected with HIV in Bra- 
zil, with 203,353 cases of AIDS reported to the Ministry of Health from 1980 through Decem- 
ber 2000. In 2001, 105,000 people with HIV/AIDS received antiretroviral treatment. The Bra- 
zilian AIDS program reduced AIDS-related mortality by more than 50 percent between 1996 
and 1999. In two years, Brazil saved $472 million in hospital costs and treatment costs for 
AIDS-related infections. 

20 Quoted in Small, "Brazil Battles for Right of All Nations to Affordable Medicines." 

21 Quoted in ibid. 

22 Well-documented cases of countries that have been subjected to pressures are Thailand, 
Kenya, and Argentina. See Nathan Ford, "Patent, Access to Medicines and the Role of Non- 
governmental Organizations," Journal of Generic Medicines 1, no. 2 (January 2004): pp. 137- 
45; Frederick M. Abbott, "Doha Declaration on TRIPS and Public Health: Lighting a Dark Cor- 
ner at the WTO," Journal of International Economic Law 5, no. 2 (2002): pp. 469-505. 

23 The WHO Revised Drug Strategy Resolution, WHA 49.14, para. 2 (10) in 1996 led to the 
first guide by the WHO, German Velasquez and Pascale Boulet, Globalization and Access to 
Drugs: Perspectives on the WTO/TRIPS Agreement, 2nd ed. (Geneva: WHO, 1999), with rec- 
ommendations to member states for implementing TRIPS while limiting the negative effects 
of higher levels of patent protection on drug availability. See also WHO Resolution WHA 
54.10 (2001), "Scaling Up the Response to HIV/AIDS Resolution," available on-line at http:// 
www.cptech.org/ip/health/who/wha.html, and WHO Resolution WHA 54.11 (2001), "Medi- 
cines Strategy Resolution," also available on-line at http://www.cptech.org/ip/health/who/ 
wha.html (both last accessed March 23, 2009). See also Ellen 't Hoen's essay, "The Revised 
Drug Strategy: Access to Essential Medicines, Intellectual Property, and the World Health 
Organization," in this volume. On the UN Sub-Commission for the Protection and Promo- 
tion of Human Rights, see United Nations Economic and Social Council Commission on 
Human Rights Sub-Commission on the Promotion and Protection of Human Rights Resolu- 
tion 2000/7, "Intellectual Property Rights and Human Rights," para. 2, UN doc. no. E/CN.4/ 
SUB.2/RES/2000/7 (2000) (last accessed March 23, 2009). See also Someshwar Singh, "TRIPS 
Regime at Odds with Human Rights Law, Says UN Body," (August 2000), available on-line 
at http://www.twnside.org.sg/title/odds.htm (last accessed March 23, 2009). On the United 
Nations Development Programme, see Human Development Report 1999 (Oxford: Oxford Uni- 
versity Press, 1999), available on-line at http://hdr.undp.org/en/media/HDR_i999_EN.pdf 
(last accessed March 23, 2009). 

24 The Council for TRIPS is a body within the WTO open to all WTO members and responsible 
for administering the TRIPS Agreement. 

25 Drug regulatory authorities usually require pharmaceutical companies to submit data demon- 
strating the safety, quality, and efficacy (collectively known as "test data") of a pharmaceuti- 
cal product as a condition for permitting the marketing of it. However, there are different 
opinions as to the obligation that the TRIPS Agreement places on countries with respect to 
the protection of test data. Article 39.3 of the TRIPS Agreement requires members to provide 
protection against "unfair commercial use" for undisclosed test or other data submitted for 
the purposes of obtaining marketing approval. Proponents of higher standards of protection 
argue that Article 39.3 requires the granting of exclusive rights over test data. This approach 
would prevent regulatory authorities from registering generic medicines on the basis of the 
test data provided by the originator companies and thus would hamper access to affordable 



156 SHASHIKANT 



generic medicines. Developing countries in their submission to WTO stated that Article 39.3 of 
TRIPS does permit a national competent authority to rely on data in its possession to assess 
a second and further application relating to the same drug and that this would not imply any 
"unfair commercial use." See the submission by the African Group, Barbados, Bolivia, Brazil, 
Cuba, Dominican Republic, Ecuador, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, 
Philippines, Peru, Sri Tanka, Thailand, and Venezuela, WTO doc. no. IP/C/W/296, available 
on-line at http://www.twnside.org.sg/title2/FTAs/Intellectual_Property/IP_and_Access_ 
to_Medicines/TRIPSandPublicHealthWTOSubmission.doc (last accessed March 23, 2009). 

26 Quoted in Cecilia Oh, "Developing Countries Call for Action on TRIPS at Doha WTO Min- 
isterial Conference," available on-line at http://www.twnside.0rg.sg/title/twri3id.htm (last 
accessed March 24, 2009). 

27 See Chakravarthi Raghavan, "NGOs Demand 'Pro-Public Health' Interpretation of TRIPS," 
available on-line at http://www.twnside.org.sg/title/pro.htm (last accessed March 24, 2009). 

28 See Cecilia Oh, "U.S. Opposed to Moves to Address Public-Health Concerns about TRIPS," 
available on-line at http://www.twnside.0rg.sg/title/twri3if.htm (last accessed March 24, 
2009). 

29 Quoted in ibid, 

30 Oh, "Developing Countries Call for Action on TRIPS at Doha WTO Ministerial Conference." 

31 Submission by the African Group, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecua- 
dor, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, 
Thailand, and Venezuela, WTO doc. no. IP/C/W/296. See also subpara. 5 (d) of the Doha 
Declaration (see n.53 below). 

32 Chakravarthi Raghavan, "Deadlock over Doha Public Health Declaration," South North Devel- 
opment Monitor (SUNS), no. 4985 (October 2001), available on-line at http://www.twnside. 
org.sg/title/deadlock.htm (last accessed March 24, 2009). 

33 Chakravarthi Raghavan, "Deeply Divided WTO Faces Moment of Truth," South North Devel- 
opment Monitor (SUNS), no. 5008 (November 2001), available on-line at http://www.twnside. 
org.sg/title/truth.htm (last accessed March 24, 2009). 

34 Chakravarthi Raghavan, "Talks on TRIPS and Public Health Break Down," South North Devel- 
opment Monitor (SUNS), no. 4996 (October 2001), available on-line at http://www.twnside. 
org.sg/title/breakdown.htm (last accessed March 24, 2009). 

35 Carlos M. Correa, "Implications of the Doha Declaration on the TRIPS Agreement and Public 
Health," WHO, EDM series no. 12 (June 2002), available on-line at http://www.gefoodalert. 
org/library/admin/uploadedfiles/Implications_o f_the_Doha_Declaration_on_the_TR.htm 
(last accessed March 24, 2009). 

36 See Kanaga Raja, "NGOs Accuse Rich Nations over TRIPS and Public Health," South North 
Development Monitor (SUNS) no. 4971 (September 20, 2001), available on-line at http://www. 
twnside. org. sg/ title/accuse. htm (last accessed March 24, 2009). 

37 'T Hoen, "TRIPS: Pharmaceutical Patents and Access to Essential Medicines, Seattle, Doha 
and Beyond." 

38 In 2001, over the course of several weeks, letters containing anthrax spores were mailed to 
several news media offices and U. S. senators. 

39 Emma Clark, "America's Anthrax Patent Dilemma, BBC News Online, October 23, 2001, avail- 
able at http://news.bbc.co.Uk/2/hi/business/l6i34io.stm (last accessed March 24, 2009). 

40 The Doha Declaration on the TRIPS Agreement and Public Health, November 14, 2001, 



THE DOHA DECLARATION 157 



WTO doc. no. WT/MIN(oi)/DEC/2, is available on-line at http://www.wto.org/english/ 
theWTO_e/minist_e/minol_e/mindecl_trips_e.pdf (last accessed March 24, 2009). 

41 See subpara. 5 (c) and 5 (d) of the Doha Declaration. Subpara. 5 (d) pertains to the right of 
"parallel import." A country can provide "international exhaustion" which permits importa- 
tion without the permission of the rightsholder after a first sale by that rightsolder anywhere 
in the world, "regional exhaustion" which permits importation after a first sale in the region, 
and "national exhaustion" which precludes parallel importation. 

42 Para. 6 of the Doha Declaration. 

43 Article 31 (f) of the TRIPS Agreement. 

44 See 't Hoen, "TRIPS: Pharmaceutical Patents and Access to Essential Medicines, Seattle, Doha 
and Beyond"; Carlos M. Correa, "Implementation of the WTO General Council Decision on 
Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health" (2004), 
WHO doc. no. WHO/EDM/PAR/2004.4, available on-line at http://www.who.int/medi- 
cinedocs/collect/medicinedocs/pdf/s6l59e/s6l59e.pdf (last accessed March 24, 2009). 

45 "Implementation of Paragraph 6 of the Doha Declaration on the Trips Agreement and Public 
Health, 30th August Decision of General Council," WTO doc. no. WT/L/540, available on- 
line at http://www.wto.org/english/tratop_E/TRIPS_e/implem_para6_e.htm (last accessed 
March 24, 2009). 

46 On December 6, 2005, member states agreed that the August 30 decision would be translated 
into an amendment of the TRIPS Agreement. See WTO doc. no. WT/L/641 for the December 
6, 2005 decision. See also Sangeeta Shashikant, "General Council Approves 'Permanent Solu- 
tion' to TRIPS and Health," South North Development Monitor (SUNS), no. 5932 (December 
8, 2005), available on-line at http://www.twnside.org.sg/title2/intellectual_property/wto_ 
trips/2005/SUNS. GCapprovespermanentsolutiontoTRIPSandhelath.doc. 

47 See also Sangeeta Shashikant, "Rushing through a Permanent Solution for TRIPS and Health," 
South North Development Monitor (SUNS), no. 5931 (=December 7, 2005) available on-line at 
http://www.twnside.org.sg/IP_wto_2005.htm (last accessed March 24, 2009). 

48 Para, l of the Doha Declaration. 

49 Para. 7 of the Doha Declaration: "We reaffirm the commitment of developed-country mem- 
bers to provide incentives to their enterprises and institutions to promote and encourage 
technology transfer to least-developed country members pursuant to Article 66.2. We also 
agree that the least-developed country members will not be obliged, with respect to pharma- 
ceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement 
or to enforce rights provided for under these Sections until l January 2016, without prejudice 
to the right of least-developed country members to seek other extensions of the transition 
periods as provided for in Article 66.1 of the TRIPS Agreement. We instruct the Council for 
TRIPS to take the necessary action to give effect to this pursuant to Article 66.1 of the TRIPS 
Agreement." 

50 'T Hoen, "TRIPS: Pharmaceutical Patents and Access to Essential Medicines, Seattle, Doha 
and Beyond." 

51 Medecins Sans Frontieres, "Fatal Imbalance: The Crisis in Research and Development for 
Drugs for Neglected Diseases," September 3, 2001, available on-line at http: //www. msfaccess. 
org/fileadmin/user_upload/medinnov_accesspatents/fatal%20imbalance.pdf (last accessed 
March 25, 2009). 

52 Oxfam, "Patent Injustice: How World Trade Rules Threaten the Health of Poor People," 



158 SHASHIKANT 



February 2001, available on-line at http://www.oxfam.org.uk/resources/policy/health/ 
downloads/patentinjustice.pdf (last accessed March 25, 2009). 

53 Consumer Project on Technology, "Background Information on fourteen FDA Approved HIV/ 
AIDS Drugs," June 8, 2000, available on-line at http://www.cptech.org/ip/health/aids/ 
druginfo.html (last accessed March 25, 2009). 

54 Consumer Project on Technology, Essential Action, Oxfam, Treatment Access Campaign, and 
Health GAP, "Comment on the Attaran/Gillespie-White and PhRMA Surveys of Patents on 
Antiretroviral Drugs in Africa," October 16, 2001, available on-line at http://www.cptech.org/ 
ip/health/africa/dopatentsmatterinafrica.html (last accessed March 25, 2009). 

55 Amir Attaran and Lee Gillespie-White, "Do Patents for Antiretroviral Drugs Constrain Access 
to AIDS Treatment in Africa?" Journal of the American Medical Association 286, no. 15 (Octo- 
ber 17, 2001): pp. 1886-92. 

56 'T Hoen, "TRIPS: Pharmaceutical Patents and Access to Essential Medicines, Seattle, Doha 
and Beyond." 

57 Abbott, "Doha Declaration on TRIPS and Public Health," pp. 469-505. 

58 The submission by the African Group, Barbados, Bolivia, Brazil, Cuba, Dominican Repub- 
lic, Ecuador, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri 
Lanka, Thailand, and Venezuela, WTO doc. no. IP/C/W/296, states: "Finally, in civil society, 
a number of important non-governmental organizations, such as 'Medecins Sans Frontieres', 
Oxfam and Consumers International also have emphasized their concern that the TRIPS 
Agreement may be applied in detriment to health policies." See Oh, "Developing Countries 
Call for Action on TRIPS at Doha WTO Ministerial Conference." 

59 Correa, "Implications of the Doha Declaration on the TRIPS Agreement and Public Health." 

60 Martin Khor, "Patents, Compulsory License and Access to Medicines: Some Recent Experi- 
ences," February 2007, available on-line at http://www.policyinnovations.org/ideas/policy_ 
library/data/patents_compulsory_license (last accessed March 25, 2009). 



THE DOHA DECLARATION 159 



y nzJim 




Student demonstration against software patents in Belgium, May 2005. 



An Uncertain Victory: 

The 2005 Rejection of Software Patents 

by the European Parliament 

Philippe Aigrain 



On July 6, 2005, the European Parliament voted by a large majority to reject the 
Directive on the Patentability of Computer-Implemented Inventions proposed by 
the European Commission Internal Market directorate-general. 1 This event marked 
a milestone in the access to knowledge movement: For the first time, it obtained 
a major political decision after a mass mobilization of citizens and civil-society 
groups and a wide-ranging open debate reaching well beyond the action of spe- 
cialized NGOs. 

Software plays an essential role in many activities and fields of technology and 
science. Europe's legal recognition of software patents would have represented a 
very severe blow to the existence of a freely usable common body of knowledge. 2 

Software is information, expressed in a formal language, about how to process 
information. A computer program is a form of mathematical statement, and it is so 
regardless of whether it is used in a computerized pasta machine, for text process- 
ing, or to compute some exotic sort of number. Software has opened a new world 
of information processing that has deeply transformed human activities: thought, 
expression, communication, and creation. It has also changed the conditions of inno- 
vation in many fields of technology. Technology still deals with what Richard Stall- 
man has called "the perversity of matter": the fact that material things break, heat 
up, wear out, are hard to manufacture consistently, and can be combined one with 
the other only at a very limited scale and with careful planning. 3 But these core tech- 
nological challenges have been localized, broken down into their components. Their 
physical complexity has been confined. Some technical objects can be "reduced" to 
information-processing modules taking their input from receivers and sending their 
output to simple effectors. Sometimes, though, material, energetic, biological, or 
systemic complexity resists such reduction. These are the most important technical 
challenges in environmental or biological innovation, for instance. For example, a 



161 



seed is more that just genetic material— it is also an environment in which the genes 
will be expressed and in which the future plant will start developing. 

The case for patents as an incentive to innovation and the effects of grant- 
ing them are radically different in the information domain and in the physical 
domain. Information-domain patents (software patents, genetic-information pat- 
ents) lead to monopolies on the free reproduction of information and to arbitrary 
prices completely disconnected from production and even research costs. Actually, 
in the software domain, even much narrower monopolies, such as copyright, lead 
to extreme dominant positions when they are combined with network effects. In 
such cases, the effect of patents is to cement these monopolies. Because innova- 
tion in software is combinatorial (combining components) and incremental (refin- 
ing functionality) and often results from transferring an idea from one domain to 
another, software patents block future innovation and its dissemination by creat- 
ing patent thickets — accumulations of patents through which an innovator can no 
longer find a possible way to create an innovation without infringing on patents. 4 
In contrast, for mechanical devices or chemical processes, patents can be worked 
around, and this often results in new ways of dealing with material challenges. 

Described at this general level, information-domain patents are excellent for 
rent seekers, but useless, at best, and harmful most often, for innovation and access 
to knowledge. However, the promoters of software patents are not found only in 
pure-information industries such as proprietary software. Industry or research labs 
that are active in mixed domains, such as consumer electronics or mobile-phone 
devices, would like to have the best of both worlds: the plasticity and ease of inno- 
vating in the software domain and the patent protection that has been judged use- 
ful for material objects. They have summarized this view in a formula: "Why would 
it be impossible for us to patent a phone or hi-fi, now that there is plenty of soft- 
ware in it, when we were able to patent it before?" But what exactly do they want 
to patent? Is it the phone's physical components — for instance antennas, which 
remain necessary in software radio and whose patentability is not disputed— or 
a piece of software for the digital generation of a sine curve that is a pure math- 
ematical method used in hundreds of fields other than telephony? 5 This distinction 
became the nexus of the software-patents debate, and one of the most surpris- 
ing outcomes of the debate was to see a few members of the European Parliament 
becoming able to argue in detail with industry lobbyists on such complex issues. 

In July 2005, after the vote to reject the proposed directive on patentability, 
there were shouts of victory from many sides. The almost unanimous vote was 
obtained by a mix of antisoftware-patent votes and prosoftware-patent votes. The 
former were pleased to reject the directive, since it did not appear possible to obtain 
majority for a text that would make a clear and updated statement that software 



162 



and software-based information-processing methods are not patentable. The latter 
were resigned to rejecting the directive when it became clear that a prosoftware- 
patent text would never obtain majority. There is little doubt that at least the vote 
was a defeat for those who wanted to turn the practice of the European Patent 
Office of granting patents on software and software-based information-processing 
methods into law. However, the situation after this vote is one of great uncertainty, 
since the practice remains. This essay intends to help the reader understand what 
made possible this outcome and where things stand today in Europe. 

BATTLES OVER SOFTWARE PATENTABILITY PRIOR TO 2005 

To do so, we need to begin with a bit of perspective. 6 Ten years before the vote of 
July 6, 2005, the European Parliament had already rejected a directive extending 
the scope of patentability. On March 1, 1995, the European Parliament rejected by 
240 votes to 188 (with 23 abstaining) a directive that permitted the patenting of 
gene sequences and of organisms that contain modified or otherwise patentable 
gene sequences. However, it took only three years for this victory to be reversed, 
with the adoption of Directive 98/44 by the European Parliament in 1998. During 
these three years, an innovative combination of lobbying techniques was put in 
place by industry players, a mix of agrifood biotech and pharma biotech compa- 
nies that were interested in gene-sequence patentability 7 

Part of the innovation in these efforts lay in the use of new forms of rhetoric. 
In the drafting of legal documents, the normative form is to define the scope of a 
permission or an interdiction by a sequence of alternate statements such as "Free- 
dom of expression is a fundamental right, however, its exercise can be restricted 
by judicial authorities based on established reasons of national security or the pro- 
tection of persons." When this form of legal discourse is used, the substance lies 
in the second provision. Directive 98/44 used this normative form by first stat- 
ing that human gene sequences are not patentable inventions, because they are 
discoveries, but then claiming that they are patentable "when they are isolated 
from the human body or otherwise produced by means of a technical process." 
Because any gene sequence that is known is always isolated or otherwise produced 
by a technical process, this amounted to saying: "Human gene sequences are not 
patentable inventions, but are patentable inventions." Opponents denounced this 
rhetoric as analogous to Orwellian Newspeak, but were unable to prevent the 
directive from being adopted. However, civil-society groups quickly developed the 
ability to detect such rhetorical sleights-of-hand, and they were quick to detect its 
repeated use in the 2002 proposal for a directive on the patentability of computer- 
implemented inventions, in which the term "computer-implemented inventions," a 



THE 2005 REJECTION OF SOFTWARE PATENTS 163 



neologism, was defined as referring to the underlying principles of software. This 
allowed those who drafted the proposal to say, in effect, "Software or algorithms 
remain unpatentable, but they can be patented under the name of computer- 
implemented inventions." Such Orwellian tactics were successful, however, and 
efforts to promote the patentability of software continued in Europe right up to 
the victory of patentability opponents in 2005. 

Software patents were progressively recognized in the United States from the 
end of the 1980s on and became common in the 1990s. 8 The European Patent Office 
(EPO) therefore was subjected to increasing pressure from its customers to align 
the European practice with the U.S. standard of patenting software. 9 However, 
there existed a major obstacle to such an alignment: the provision in Article 52 of 
the European Patent Convention (EPC) that lists a number of things that cannot be 
patented because they are not inventions, 10 including computer programs, math- 
ematical methods, and business methods, etc. In a series of cases (IBM 1997 and 
1998, Philips 2000), the EPC therefore used its in-house Chamber of Appeal to cre- 
ate surrealistic case law that was soon incorporated in its examination guidelines. 
This case law used Article 52(3) of the EPC, which states that the exclusion from 
patentability applies only to the excluded entities "as such." It claimed that the 
excluded entities could be patented if they had "a technical effect" or if "technical 
considerations" were necessary to produce them. 11 According to this new case law, 
tens of thousands of software patents were granted by the EPO. 12 

However this home-made case law was fragile, since there is good evidence 
from managers of the EPO themselves that the EPC wording in the case of software 
was meant only to declare that a physical invention could still be patented, whether 
or not it contained software. 13 The EPO and its representatives within the European 
Commission consequently proceeded to make the law more explicitly favor patent- 
ability in accordance with practice by working along two parallel tracks. 14 

The first one was to hold a diplomatic conference for deleting the inconvenient 
exclusions from the EPC. 15 The initial proposal simply deleted all exclusions from 
patentability, including, for instance, exclusions for games or methods of teaching. 
After some debate developed, it was proposed to delete only the exclusion of com- 
puter programs. However, from the end of 1998 on, NGOs advocating for free or 
open-source software started alerting decision makers about the risks of software 
patentability for the freedom to innovate in software. This debate had reached a 
sufficient scale by 2000, when the diplomatic conference was held in Munich, to 
motivate national delegates to refuse to amend the convention until progress had 
to be made along the second track: producing European legislation on the patent- 
ability of software. The then fifteen countries of the European Union voted four- 
teen to one against deleting the exclusion . . . for the time being. 



164 



The proposal for a directive then was prepared by a number of steps that had 
been initiated from 1996 on. A green book on the future of patents in Europe was dis- 
cussed, 16 mostly in specialized patent circles. In 1997, the European Commission pub- 
lished a communication on the follow-up to the green book that included an explicit 
mention of a directive to come. Until 1998, almost no software practitioners were 
involved in the debate. (The only one speaking at the London conference on March 
23, 1998, took a clear stand against any form of software patentability.) However, 
from 1998 on, developers of free and open-source software, small and medium-sized 
shareware enterprises, and a number of academics started to alert the public and 
decision makers about the risks of accepting patents on software. These concerns 
were relayed within the European Commission by the Information Society general- 
directorate. A lively internal debate echoed the external debate that was developing 
in Europe. A provisional compromise was struck between the relevant commission- 
ers: A new consultation of stakeholders and citizens would be launched on October 
19, 2000. In parallel, some European Union members states such as the UK initiated 
a consultation of their own, while others, such as Germany, commissioned studies, 
and still others, such as France, created committees that were asked to recommend a 
policy. 

The biased manner in which the Internal Market general-directorate handled 
the analysis of opinions submitted in answer to its consultation did a lot to weaken 
its case. The Foundation for a Free Information Infrastructure, an NGO dedicated 
to keeping innovation open in the software field, had asked stakeholders to trans- 
mit their opinion through them. This was an answer to the fact that the European 
Commission admitted nonpublic responses to its consultation. The Internal Market 
and Services directorate-general of the European Commission assigned a previ- 
ously unknown consultant to produce an analysis of contributions. His report dis- 
carded 90 percent of the answers (all those — opposed to software patents — that 
were transmitted through the Foundation for a Free Information Infrastructure) as 
having been initiated by a specific party. Even then, half of the remaining answers 
were opposed to software patents. The report had to declare that those in favor 
were more significant in terms of sales and employment. Meanwhile, a large body 
of knowledge and evidence started to accumulate on the nature of software pat- 
ents and their effects where they were already in place. 

THE JUNE 25, 2002 DIRECTIVE 

When the European Commission adopted a proposal for a Directive on the Pat- 
entability of Computer-Implemented Inventions on June 25, 2002, it was basically 
proposing to turn into law the existing practice of the EPO of granting patents 



THE 2005 REJECTION OF SOFTWARE PATENTS 165 



on software and methods for processing information in the information domain. 
There was one difference, and a significant one, that testified to the effects of prior 
debates: The directive was not proposing to accept patent claims on software, "as 
this could be seen as allowing patents for computer programs 'as such.'" 17 The direc- 
tive was presented as not following the U.S. practice of granting patents on business 
methods and claimed not to allow patents on algorithms. The former affirmation 
was quickly debunked when analysis of existing patents showed that it was enough 
for a business method to be implemented in software and to produce some improve- 
ment for it to be patentable. The latter claim was based on a radical misrepresen- 
tation of the relationship between algorithms and software, since algorithms are 
nothing other than the underlying principles of software, while the whole idea of 
patenting software is to grant monopolies on these principles. In fact, the use of 
"computer-implemented inventions" in the title was deceptive, because "computer- 
implemented inventions" were basically defined as software. 18 

The proposed directive then went through the complex European legislative 
process, consisting of two parallel readings in the European Council, which repre- 
sents member States, and in the elected parliament. When both are in serious dis- 
agreement, the council has the stronger power, which means that the parliament 
could make its point only by rejecting the directive. It is generally reluctant to do 
such a thing, because a majority of its members committed to creating EU-level 
legislation. The European Council produced its first reading before the parliament 
did so. It was prepared by a "working party on intellectual property (patents)." In 
this group, more than half of the then fifteen member states were represented by 
patent offices, and representatives of the EPO sat on the commission bench. The 
council set out to amend the commission proposal by allowing software claims, 
thus aligning the directive with EPO practices. However, the council decided to 
wait for the parliament's reading before formally adopting its own position. 

This position was adopted in a vote on September 24, 2003. It came as a thun- 
derbolt. The parliament adopted amendments submitted by the Culture Commit- 
tee (rapporteur, Michel Rocard, socialist), by the Industry, Trade, Research and 
Energy Committee (rapporteur, Elly Plooij van Gorsel, liberal) or by members of 
the European Parliament who often were drawing inspiration from proposals by 
civil-society groups. These amendments adopted a strict definition of what can be 
considered to be "technical," putting it in relation with physical devices and pro- 
cesses, and clarified that patents can be granted only when innovation lies in this 
physical, technical domain. Civil-society initiatives used the possibility for any 
European resident or group to petition the European Parliament on issues of its 
competence: Leading computer scientists signed a detailed analysis of the reasons 
to reject software patents, 19 while one hundred and fifty thousand citizens signed 



166 




Demonstration against software patents in Germany, June 2004. 



a petition against software patents initiated by the Foundation for a Free Informa- 
tion Infrastructure. The amended text constituted a clear and detailed rejection 
of all the mechanisms by which software patentability had been sneaked into the 
practice of the EPO. 

There was such a shock that patent lobbyists started expressing publicly the 
view that patentability issues were truly too serious to be the object of democratic 
decision making. Until then, prosoftware-patent lobbying had been restricted to 
behind-the-doors contacts with the European Commission and members of the 
European Parliament, while opponents argued on substance and conducted public 
workshops. A significant change developed in the next two years, when advocates 
for software patents developed an all-out lobbying campaign, including the estab- 
lishmentment of a "Campaign for Creativity" that backfired when it appeared to be 
a lobbying-consultant initiative funded by Microsoft and SAP, without any link to 
real software practitioners. 20 Some opponents of software patents also adopted a 
communication campaign, in particular, the NoSofthawarePatents.com campaign 
conducted by Florian Miiller with support from MySQL and Red Hat. 21 In the last 
weeks before the July 2005 vote, communication efforts on both sides culminated 



THE 2005 REJECTION OF SOFTWARE PATENTS 



167 



with distributions of free ice cream, demonstrations, and boat fights on the canals 
close to the European Parliament building near Strasbourg. 

Before that climax, the reading of the proposed directive had proceeded with 
great pain in the council. A text was produced by the Irish presidency, under 
fierce criticism due to its interests as a tax haven for holders of intellectual prop- 
erty rights, 22 and a "political compromise" was recorded on May 18, 2004. It was 
a confusing text that basically reiterated the propatent, first-reading position, 
but installed it under smokescreens of complex language. Various opponents pro- 
duced translations to normal language in the days that followed its adoption. 23 
It took four meetings and several votes before a qualified majority was reached, 
on March, 7, 2005, to adopt this text formally. Whether there was a truly quali- 
fied majority is still open to doubt, because one country (the Netherlands) later 
changed its vote, and another (Poland) protested that its vote had not been prop- 
erly recorded. The fragility of this decision eased the path toward rejection of this 
"compromise" position by the parliament. After the climax of lobbying mentioned 
above, it became clear that there was no majority in the parliament for adopting a 
text that would please the patent advocates and proprietary-software lobbies. So 
everyone rallied to reject the text, and each claimed that doing so was a victory for 
its views. The text was rejected by the unprecedented majority (for a rejection) of 
648 in favor, 14 against, and 18 abstentions. 

WHAT MADE THE "VICTORY" POSSIBLE? 

How was such an unexpected result obtained? It resulted from the synergy 
between several movements, each of which had built a serious case in its domain. 
At the urging of Harmut Pilch, the Foundation for a Free Information Infrastruc- 
ture accumulated a broad body of empirical knowledge on actual patenting prac- 
tices in Europe that served as the basis for scholarly work in both Europe and the 
United States. It was not long before active opponents of patentability knew much 
more about what software patents looked like, who owned them, and how many 
of them there were than their defenders. This was useful for building four differ- 
ent cases: a case for innovation, a scientific case, a political case, and a case based 
on academic research into the actual effects of software patents, each of which 
mobilized different communities. 

The case for innovation gave rise to a mass mobilization of software devel- 
opers well beyond developers of free and open-source software. This group was 
by far the largest in terms of direct action. It included individuals who on their 
own initiative flew to Brussels to talk to members of the European Parliament. 
The members of parliament were not used to encountering twenty-year-old 



168 



programmers wanting to give them pedagogic explanations of the impact of soft- 
ware patents on innovation, and they listened carefully. Hundreds of engineers of 
the large European companies that were supporting software patents signed the 
Foundation for a Free Information Infrastructure petition against the patentability 
of software. 24 

But there was also a scientific case, which mobilized fewer people, but which 
gave impressive intellectual credibility to the opposition. 25 The scholarly eco- 
nomics community was divided, but a leading group of economists signed a let- 
ter against software patents a few days before the vote. More importantly, the 
organizations of small and medium-sized European shareware enterprises made 
known their own opinion on the subject, making clear that they did not share 
the propatent view of the Union of Industrial and Employers' Confederations of 
Europe, the large-company employer organization. This had a major influence on 
bringing a small part of the conservative members of parliament, who traditionally 
speak for a lot of small and medium-sized shareware enterprises to a critical view 
of software patents. In reaction, some large companies created an ad-hoc orga- 
nization of small and medium-sized shareware enterprises whose members were 
spin-off companies, directly or through university partnerships. In a similar move, 
Microsoft created an ad-hoc proprietary software-publisher organization when 
it became clear that the general software employer organizations and the profes- 
sional societies were reluctant to support their view. 

All this would have probably not been sufficient without a political case also 
being built. The European Parliament has a culture of cross-party work that rests 
significantly on the relationships between advisers, assistants, and sometimes 
members of parliament. The 2003 vote in which many parties split their votes (the 
conservatives, the socialists, the liberals) cannot be understood without reference 
to the lively discussions between young advisers and assistants in corridors, caf- 
eterias, and Brussels pubs. These conversations took place in a context where pub- 
lic debate was also raging. The Green Party organized a number of seminars, some 
debates in which contradictory views were expressed, others more one-sided, but 
presenting the various facets of the antisoftware-patents movement. 

In these seminars and more generally in the literature on software patents, 
scholarly work conducted in the United States had an important impact, building 
a case against patents based on academic research into the actual effects that the 
patents had produced. As I noted, the United States had introduced software pat- 
ents at the end of the 1980s, and they were granted ever more massively, especially 
from 1994 on. The United States thus provided a real-life experiment, even if the 
true impact of changes in the scope of patents will in reality take much longer to be 
fully evident. A number of studies had a devastating impact. The Bessen-Maskin 



THE 2005 REJECTION OF SOFTWARE PATENTS 169 



and Bessen-Hunt papers demonstrated an inverse correlation between an increase 
in software patenting and investment in research and development. 26 Work by 
Brian Kahin highlighted the huge costs of patent litigation and the increasing share 
of innovation budgets dedicated to patents and patent risks. 27 Evidence of a mas- 
sive unbalance in the number of patents held by U.S. -based companies (and to 
a lesser extent Asian companies) compared with European companies also made 
obvious that from a specific European viewpoint, software patents were not more 
desirable than from a global viewpoint. 

WHERE DO THINGS STAND? 

The title of this essay, "An Uncertain Victory," calls for an explanation. After the 
vote of the European Parliament, we are in a regime of the status quo. The EPC still 
declares mathematical methods, computer programs, and so on to be not patent- 
able as such. The EPO continues granting patents on software and software meth- 
ods for processing information or doing business. Litigation and counterlitigation 
are limited, due to the obvious legal uncertainty: Companies are piling up software 
patents in Europe without using them, for the time being, while software develop- 
ers keep ignoring them. Contrary to what happens in the United States, it is only in 
areas of standardization that the concrete effects of software patents are felt: Sev- 
eral standards have been blocked by patent jeopardy, for instance, JPEG 2000 and 
the internationalization of domain names in the Internet Engineering Task Force 
(IETF). 

There are clear signs that patent-related institutions, the European Commis- 
sion, and the propatent lobbies are busy working on other ways to give a firmer 
legal status or at least a stronger practical effect to software patents. The empha- 
sis has first been on litigation and jurisdiction. The commission has been trying 
for ages to install a European Community Patent associated with a single Euro- 
pean jurisdiction. 28 Critics fear that the creation of a specialized jurisdiction would 
have the same effect as when sucthe creation of the specialized Court of Appeal 
of the Federal Circuit through which software patentability was introduced in the 
United States in the 1980s and 1990s. This effort has been blocked so far by lin- 
guistic conflicts between member states, though the situation may change, since 
some opposing countries, such as France, have now seemingly decided to sign the 
London Protocol, an agreement that would allow institution of the European Com- 
munity Patent to proceed. In parallel, the EPC is pushing for the European Patent 
Litigation Agreement, because this agreement would permit exporting the scope of 
decisions from one member state to another. Harmonization of patent examination 
in the Substantive Patent Law Treaty managed by the World Intellectual Property 



170 



Organization (WIPO) is another track by which the U.S. standard of software pat- 
entability could be exported to Europe. However, it seems to be blocked by the 
conscious opposition of emerging and developing countries in the organization. 29 

The trend toward modifying the substantive definition of rights indirectly (for 
instance, in scope) by acting on enforcement is not restricted to patents: One sees 
it also in the area of copyright, from the World Intellectual Property Organization 
Copyright Treaty to the U.S. Digital Millennium Copyright Act and the by-prod- 
ucts of the European Copyright Directive or the proposed broadcasters' treaty 30 
It also uses instruments that apply to all intellectual property right titles, such as 
the intellectual property right enforcement directives and the recently initiated 
proposal for an international Anti-Counterfeiting Trade Agreement. These very 
abstract texts are much more difficult to debunk than texts extending the scope 
of intellectual property rights. It remains to be seen whether civil society, scholars, 
and public-interest-oriented policy makers will be able to make clear for all what is 
at stake in these more obscure corners. It may also be that a more frontal approach 
will be taken, for instance through a new diplomatic conference for the revision of 
the EPC. But the awareness built though the eight years that led to the July 2005 
uncertain victory is still there. 

During the period between the two votes in the European Parliament, the scale 
of the international access to knowledge movement changed. Prior to 2004, it was 
mostly an initiative of specialized international English-speaking NGOs, with some 
national counterparts in other countries. Today, it is a powerful coalition of better- 
coordinated NGOs and key emerging countries (Brazil, Argentina, India, and Chile), 
with growing support from other developing countries. It has obtained support 
from new segments of public opinion: scientists and policy circles well beyond 
those traditionally interested, including, for instance, those concerned with cli- 
mate-change issues. The movement that led to the 2005 victory is one of the fac- 
tors that helped access to knowledge to become credible in the public's mind and 
on the international scene. 



NOTES 

This title was in itself exemplary of the tactics put in place by the directorate-general when 
it proposed the directive. Because a strong opposition to patenting software existed, the 
drafters tried to hide the fact that the object of the directive was to recognize software pat- 
ents. They did so by using the neologism "computer-implemented inventions," which was 
defined in the text as equivalent to software, but could be understood by some readers as 



THE 2005 REJECTION OF SOFTWARE PATENTS 171 



meaning physical inventions using software. See below for more on such tactics. The text of 
the proposal, 2002/0047/COD, is available on-line at http://eur-lex.europa.eu/LexUriServ/ 
LexUriServ.do?uri=CELEX:52002PC0092:EN:N0T (last accessed February 27, 2010). 

2 On December 27, 2004, the Indian Parliament had adopted a last-minute amendment to the 
new Indian patent law, imposed by its obligations under the TRIPS agreement. This amend- 
ment rejected software patents that had been temporarily authorized in the case of embed- 
ded software by a governmental decree in 2002. The Indian rejection was clearer in its legal 
effect than the European Parliament vote, but it did not obtain the same publicity, because it 
was overshadowed by the acceptance of patents on chemical molecules. 

3 See, for example, Richard Stallman, "Software Patents — Obstacles to Software Develop- 
ment," talk presented on March 23, 2002, at the University of Cambridge Computer Labo- 
ratory, available on-line at http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html (last 
accessed March 25, 2009). 

4 Recently, some analysts have put into question the risk of patent thickets blocking innova- 
tion in software, based on lack of evidence that innovation blockage has materialized in the 
United States. I claim that the case of standards provides evidence of adverse effects of pat- 
ent thickets on the dissemination of innovation, if not on its initial stages, which generally 
proceed in total ignorance of patents. See Jim Bessen, "Software Patent Myopia," Technol- 
ogy Innovation and Intellectual Property, December 12, 2007, available on-line at http://www. 
researchoninnovation.org/WordPress/?p=90 (last accessed March 25, 2009). 

5 This is a real example. See the WO2004082129 patent by Nokia: Methods, devices and a soft- 
ware product for generating a sinusoidal signal, available on-line at http://www.wipo.org/ 
pctdb/en/wo.jsp?wo=2004082l29 (last accessed February 28, 2010). Do not imagine that the 
world "devices" in the title refers to anything physical. Claims include: "8. A software prod- 
uct for generating a sinusoidal signal of a desired frequency (f) at a sampling rate (fs), which 
software product comprises a program code for determining the nth sample of the first out- 
put sample sequence." 

6 For a longer-term perspective on patentability issues, see the entry s.v. "Patentability" in 
the Critical Dictionary of Globalization, available on-line at http://mondialisations.org/php/ 
public/art. php?id=9274&lan=EN (last accessed March 25, 2009). 

7 For an interesting account of the lobbying strategies, see Shail Thaker, "The Criticality of 
Non-Market strategies," KSM'03, available on-line at http://www.kellogg. northwestern, 
edu/biotech/faculty/articles/shail.pdf (last accessed March 16, 2010). 

8 A massive increase came after the 1994 U.S. Patent and Trademark Office review. See "Work- 
ing for Our Customers," 1994, available on-line at http://www.uspto.gov/web/offices/com/ 
annual/l994/pgl-5.pdf (last accessed March 26, 2009). 

9 For a justification of the use of the word "customers," see my "11 Questions on Software Pat- 
entability Issues in the U.S. and in Europe," Software and Business Method Patents: Policy 
Development in the U.S. and Europe, Center for Information Policy, University of Maryland, 
December 10, 2001, available on-line at http://paigrain.debatpublic.net/docs/elevenquestions 
(last accessed March 26, 2009). 

10 In patent law, inventions must be susceptible of industrial application, must be new, and 
must involve an inventive step. The statement that computer programs are not inventions in 
that sense refers to the term "industrial application" being understood (in European patent 
law) as industrially produced physical devices and physical processes in industry. 



172 



11 The actual details are more complex, since ever more adorned concepts were designed, such 
as "further technical effect," "technical considerations," etc. in order to open even wider the 
door to patentability. 

12 Between twenty and thirty thousand, according to the database produced by the Founda- 
tion for a Free Information Infrastructure (FFII), available on-line at http://eupat.ffii.org/ 
patents/stats/index. en. html (last accessed February 28, 2010). 

13 For a remarkable account of the debates in the 1970s on software patentability see Chris- 
tian Beauprez, "In Defence of the Software Author: A Study of Copyright and Patent Law 
Interactions," August 2004, available on-line at http://circa.europa.eu/Public/irc/markt/ 
markt_consultations/library?l=/copyright_neighbouring/legislation_copyright/beauprez_ 
christian/_EN_l.o_&a=d (last accessed March 26, 2009). In the United States, the debate 
was initially not even about copyright, software, and sui generis protection, as many now 
believe, it was between copyright and "no IPR [intellectual property rights] at all." See also 
Gert Kolle, "Technik, Datenverarbeitung und Patentrecht— Bermerkungen zur Dispositions- 
programm — Entscheidung des Bundesgerichtshofs GRUR 1977-02," pp 58-74, available 
on-line at http://eupat.ffii.org/papers/grur-kolle77/index.de.html (last accessed March 26, 
2009). 

14 The assessment and evolution of patent law within the European Commission was mostly 
done by seconded experts from the EPO or from national patent offices. Even during the leg- 
islative process for the 2002 directive proposal, the representatives from the EPO represen- 
tatives sat on the commission bench in the European Council working group and answered 
questions for the commission. 

15 The EPO and the EPC are intergovernmental: some countries that are not members of the 
European Union are members of the EPO and parties to the EPC. A diplomatic conference had 
the great advantage of requiring neither a debate nor a vote in the European Parliament. 

16 A green book is a document produced by the European Commission to solicit views of stake- 
holders on a topic or proposed legislation. 

17 "Explanatory Memorandum: Objective of the Community Initiative" (regarding Article 5), 
available on-line at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002P 
C0092:EN:HTML (last accessed March 26, 2009). 

18 See the discussion of Article 2 of the proposal in ibid. 

19 A detailed comment on the vote on September 24, 2003, can be found in my September 
30, 2003 speech in the Petition Committee of the European Parliament, available on-line at 
http://eupat.ffii.org/log/03/epet0929/aigrain/AigrainEpet030930.en.pdf (last accessed 
March 27, 2009), where I presented the petition by European computer scientists. On the 
date of this speech, I was no longer working with the European Commission, and I spoke as a 
simple member of the computer-science community. 

20 See "Campaign for Creativity: EU Gene Patent Lobbyists Taking Up Software," available on- 
line at http://wiki.ffii.org/CampaignForCreativityEn (last accessed March 27, 2009). 

21 See http://www.nosoftwarepatents.com (last accessed March 27, 2009). 

22 Ireland has adopted a policy of low taxes on patent revenues, with a 9 percent tax in general 
and percent in those geographical areas eligible for European Structural Funds, allocated 
by the European Union to provide support for the poorer regions of Europe and support 
for integrating European infrastructure. This has given rise to a massive derealization of 
intellectual property assets to Ireland. For instance, in 1990, IP licensing between France and 



THE 2005 REJECTION OF SOFTWARE PATENTS 173 



Ireland was balanced. In 2005, there was a balance of eighteen thousand million euros in 
favor of Ireland. Ireland is now in competition with other IP tax havens, such as Estonia. 

23 See, for instance, the analysis (in French) by Francois Pellegrini, available on-line at http:// 
linuxfr.org/2004/07/27/i6908.html, or mine (in English), available on-line at http://paigrain. 
debatpublic.net/docs/analysis-compromise.html (both last accessed March 27, 2009). 

24 At the time, the engineers opposing patentability included people from systems integrators 
such Siemens and Thales, from consumer electronics companies such as Philips, and from 
large telco suppliers such as Nokia. 

25 "Petition to the European Parliament on the Proposal for a Directive on the Patentability 
of Computer-Implemented Inventions," in Philippe Aigrain and Jesus Gonzalez-Barahona 
(eds.), "Open Knowledge," special issue, Upgrade, The European Journal for the Informat- 
ics Professional 4, no. 3 (June 2003), available on-line at http://www.upgrade-cepis.org/ 
issues/2003/3/up4-3Petition.pdf (last accessed March 28, 2009). 

26 James Bessen and Eric Maskin, "Sequential Innovation, Patents and Imitation," MIT Research 
Report (2000); James Bessen and Robert M. Hunt, 'An Empirical Look at Software Patents," 
Working Paper 3/17R, Federal Reserve Bank (2004), republished in Journal of Economics and 
Management Strategy 16, no. l (March 2004): pp. 157-89; these and many other papers are all 
accessible on-line at http://www.researchoninnovation.org (last accessed March 27, 2009). 

27 Brian Kahin, "What's Wrong with the Development of Intellectual Property Policy?" Beitrag 
zur Konferenz der Heinrich Boll Stiftung "Die Zukunft der globalen Giiter in der Wissensge- 
sellschaft— Auf der Suche nach einer nachhaltigen Politik zum Schutz des geistigen Eigen- 
tums, Novemer 8, 2002, Berlin, available on-line at http://www.wissensgesellschaft.org/the- 
men/publicdomain/wrongipp.pdf (last accessed March 27, 2009). See also James E. Bessen 
and Michael J. Meurer, "The Private Costs of Patent Litigation," Boston University School of 
Law Working Paper no. 07-08, Second Annual Conference on Empirical Legal Studies, avail- 
able on-line at http://papers. ssrn.com/s0l3/papers. cfm?abstract_id=983736 (last accessed 
March 16, 2010). 

28 In contrast with the European Patent, which rests on the intergovernmental EPC, the EPO 
would rest on European Union (community) law. The European Community Patent would 
theoretically be less expensive, and the single jurisdiction would ensure more consistent case 
law. 

29 See Viviana Munoz and Sisule Musungu's essay, "A2K at WIPO: The Development Agenda 
and the Debate on the Proposed Broadcasting Treaty," in this volume. 

30 The broadcasters' treaty is a text that would generalize specific rights for broadcasters over 
the signal they transmit (such rights exist for parties to the Rome Convention, which does 
not include the United States) and would create specific legal protection against circumven- 
tion of technical-protection measures similar to provisions in the World Intellectual Property 
Organization Copyright Treaty, the U.S. Digital Millennium Copyright Act, and the 2001/29 
European Directive for other copyrighted works. Some would like to extend the scope of 
the treaty to Webcasting or at least simulcasting (the simultaneous transmission of video or 
sound on the Internet to many users). The proposed treaty is very vociferously debated, with 
opponents stressing the risks for democracy of digital locks on television that prevent fair 
use and criticism and the uselessness of creating a new propertylike right for broadcasters. 
The treaty is presently stalled in the WIPO. 



174 



A2K at WIPO: The Development Agenda 

and the Debate on the Proposed Broadcasting Treaty 

Viviana Munoz Tellez and Sisule F. Musungu 



Some of the most important international discussions that affect access to knowl- 
edge (A2K) take place in a long-standing organization that is little known to the 
public — the World Intellectual Property Organization (WIPO). WIPO formally 
came into existence in 1970, and subsequently, in 1974, it became a specialized 
agency of the United Nations. Today, there are many other organizations involved 
in standard setting on intellectual property issues. Yet WIPO remains the main 
international intergovernmental organization responsible for the administration 
and negotiation of new intellectual property treaties and the provision of intel- 
lectual property-related technical assistance to developing countries. WIPO is 
therefore a major institutional player in the global governance and regulation of 
knowledge. Hence, the approach and discussions related to A2K in WIPO are of 
particular importance and interest to the A2K communities. 

In recent years, WIPO has been undergoing a substantial transformation. This is 
due, in part, to the new, active participation by A2K communities and to demands 
by developing countries for a more inclusive and balanced approach to its norm 
setting and other processes. While intellectual property policy has traditionally 
been considered a complex and technical issue, mainly thought of as the compe- 
tence of lawyers and transnational companies, the growing evidence of the impact 
of intellectual property on ordinary people has brought many new players to its 
discussions. The recent decision to launch a development agenda for the organiza- 
tion and the collapse of efforts to establish an exclusive rights-based treaty for the 
enhanced protection of broadcasting organizations are landmark events in the his- 
tory of WIPO and the global debate on intellectual property policy. 

This essay analyzes the A2K agenda and the role of the A2K movement within 
the process of establishing the WIPO Development Agenda and the discussions 
on the proposed WIPO Broadcasting Treaty. Looking at these two processes offers 



175 




Map of global flows of royalties and licensing fees in 2002. In the top map, the size of each territory is determined by its population. 
In the bottom, the size of the territory shows the proportion of worldwide earnings (in purchasing power parity) from royalties 
and license fees. More than half of all such income was received by the United States (© Copyright 2006 SASI Croup [University 
of Sheffield] and Mark Newman [University of Michigan] http:www.worldmapper.org/posters/worldmapper_map168_ver5.pdf). 



important lessons for the A2K movement. In the main, it demonstrates workable 
strategies by which A2K advocates can introduce transformative ideas into the 
mainstream discourse on intellectual property and by which they can challenge 
rules and standards that negatively affect development and the public interest. 
The first part of the essay focuses on the WIPO Development Agenda and the 
second on the negotiations over the proposal for a WIPO Broadcasting Treaty. We 
conclude with reflections on the future of A2K at WIPO. 

Understanding the events that took place in the context of the WIPO Develop- 
ment Agenda and the debate on the necessity and scope of enhanced protections 
for broadcasting organizations by granting exclusive rights requires a deeper look 
at the business of multilateral negotiation and its ways, a prospect that may at 
first seem off-putting, but that provides an ideal setting in which to analyze the 
evolution and growing impact of the A2K movement. This also helps us look more 
closely at the alliances and positions (connections, shifts, consolidations) of the 
players involved among the states, civil society, and industry. 

THE WIPO DEVELOPMENT AGENDA! PATHWAY TO A2K 

The agreement on a development agenda is one of the most significant develop- 
ments in the recent history of WIPO. The WIPO Development Agenda is essen- 
tially an effort to reform the current structure of global intellectual property policy 
making. It is aimed at reshaping the organization to increase its ability to address 
concerns that had been historically relegated to obscurity or absent entirely from 
the WIPO policy discussions and activities, that is, development and public-inter- 
est concerns, as well as the concerns of new industries. The core objective was to 
ensure that WIPO activities and intellectual property discussions would balance 
business interests with broader consumer and public interests and would be in line 
with the broad mandate of the UN to support the development goals of its devel- 
oping countries and least-developed countries. 1 

In the process of negotiating the elements of the WIPO Development Agenda, 
the most acknowledged and notable proposal on A2K was the attempt to negoti- 
ate, within WIPO, an A2K treaty. However, the A2K agenda in the development 
agenda by no means has been confined to the A2K treaty proposal. 2 As such, 
although the A2K treaty proposal did not become part of the final list of agreed- 
upon recommendations under the development agenda, various recommendations 
remain relevant to the A2K agenda. Many of these, however, are not under the 
rubric of access to knowledge. Rather, they are listed under the rubrics of norm 
setting, flexibilities, public policy, and the public domain. For example, under one 
proposal, the member states of WIPO commit themselves to initiate discussions on 



A2K AT WIPO 177 



how, within WIPO's mandate, access to knowledge and technology for developing 
countries and least-developed countries can be fostered. To grasp the relevance 
of the recommendations that emerged from the WIPO Development Agenda as a 
pathway leading to possible future developments for the A2K movement, how- 
ever, first we need to examine the history of the negotiations that led to the accep- 
tance of the WIPO Development Agenda. 

THE HISTORY OF THE WIPO DEVELOPMENT AGENDA 

The establishment of a WIPO Development Agenda was formally approved by the 
184 member states of WIPO in September 2007 after three years of discussion. The 
initial proposal was presented by Brazil and Argentina at the September-October 
2004 session of the WIPO General Assembly. 3 The proposal was then cosponsored 
by twelve other countries known as the "Friends of Development" and strongly 
supported by all developing countries. 4 A wide range of public-interest groups and 
other civil-society stakeholders also backed the development agenda initiative and 
actively lobbied government representatives to support the proposal. 

In fact, some of the ideas of the development agenda had been discussed in 
earlier discussions led by civil-society groups. The Future of WIPO meeting orga- 
nized by the Trans Atlantic Consumer Dialogue (TACD) in September 2004 and the 
resulting Geneva Declaration on the Future of WIPO were key developments. The 
discussions at the conference and the list of signatories to the declaration helped 
demonstrate the widespread support for the underlying ideas of the development 
agenda among civil-society groups, academics, and other sectors that previously 
had not engaged closely in WIPO debates. 5 

The WIPO Development Agenda initiative was groundbreaking in several ways. 
For the first time in recent history, developing countries presented an encompass- 
ing, alternative agenda to guide international policy making at WIPO. The devel- 
opment agenda proposal asserted that the work of WIPO as a specialized agency of 
the UN needed to follow the UN-wide broad development objectives such as those 
elaborated in the Millennium Declaration adopted in 2000 and affirming the over- 
all goals of the UN. It sought to reestablish the role and responsibility of WIPO as 
a member of the UN family, which until then was seen as a technical agency that 
should be concerned only with uncritically promoting global intellectual property 
protection. On the premise that WIPO had not systematically incorporated the 
development dimension into all of its activities, the proponents of the develop- 
ment agenda called for various internal structural and substantive reforms. 

The proposal by the core group of countries known as the "Friends of Devel- 
opment" elucidated and brought together in the WIPO context various concerns 
and ideas that had matured as part of the growing global debate on intellectual 



178 MUNOZ TELLEZ AND MUSUNGU 



MY NGO WENT TO 




T-shirt design (Cory Doctorow). 



AND ALL I GOT WAS THIS 
INFRINGING T-SHIRT 



property policy. Attention focused on WIPO largely because of the startling find- 
ings of various research studies that pointed to significant problems in the cur- 
rent intellectual property system in areas such as agriculture and public health 
and within WIPO's internal processes. Such studies included the Report of the UK 
Commission on Intellectual Property Rights, 6 the papers presented at the Bella- 
gio Dialogues on Intellectual Property and Development, 7 and a paper by Sisule F. 
Musungu and Graham Dutfield, "Multilateral Agreement and a TRIPS-Plus World: 
The World Intellectual Property Organisation (WIPO)," 8 which critically examined 
the role and activities of WIPO in the era following the adoption of the World 
Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual 
Property Rights (TRIPS), enabling many outsiders to understand the importance 
of participating in WIPO processes. 

Developing countries had been raising questions about the activities, norm 
setting, and other decision-making processes of the organization. Some concerns 
voiced by these countries and evidenced by the above studies and others on norm 
setting related to the overly active approach of the WIPO Secretariat to advance 
the Substantive Patent Law Treaty and a broadcasting treaty when no assessment 
had been made as to the need for such initiatives or their impact. Other concerns 
included the significant influence of private-interest groups in WIPO and there- 
fore negotiation outcomes, evidenced by the direct advisory role of the Industry 
Advisory Committee to the WIPO director general. 9 

THE NECESSITY FOR A DEVELOPMENT AGENDA FOR WIPO 

The adoption and entry into force of the TRIPS Agreement substantially changed 
the international intellectual property landscape. It established the rule that all 



A2K AT WIPO 



179 



WTO members must adhere to minimum intellectual property standards. As a 
result, the last decade has seen a fierce global debate about the impact of TRIPS 
standards on development and on the public interest in developing countries. In 
the minds of many, the problems of intellectual property are therefore associated 
more with the WTO than with WIPO. However, while the "politics" of intellec- 
tual property have mainly taken place at the WTO, new intellectual property rules 
are not being debated and created at the WTO, but rather under the auspices of 
WIPO. 10 In this context, activities at WIPO continue greatly to influence the shape 
of the international intellectual property system. 11 It is essentially the recognition 
of the importance of WIPO, in this sense, that spurred the actions related to the 
introduction of the original proposal on the WIPO Development Agenda. 

The ideas and proposals suggested for the WIPO Development Agenda largely 
stem from the international debate on the current functioning and evolution of 
the intellectual property system in both developed and developing countries and 
the impact of that debate on different stakeholders. It is for this reason that the 
development agenda gathered significant momentum and the necessary political 
and technical support. 

Two key questions are at the center of the current global intellectual property 
debate. The first concerns the costs and benefits of intellectual property protec- 
tion in light of changing patterns of innovation and creative activity. The second 
concerns the impact of intellectual property rights on development and public- 
interest concerns such as access to medicines, access to knowledge, sustainable 
agriculture, nutrition, and the protection of biodiversity 12 The far-reaching impact 
of the intellectual property system brought to the debate voices of a wide range 
of nontraditional stakeholders, including farmers, students, scientists, consumers, 
people suffering from life-threatening diseases, software developers, and innova- 
tive and creative businesses making use of alternative models of innovation. 

The previously successful campaigns on intellectual property and access to 
medicines and discussions of intellectual property and biodiversity in different 
national contexts and multilateral organizations, such as the Convention on Bio- 
logical Diversity and the WTO, had helped deepen the understanding among states 
and other stakeholders of the impact of intellectual property on public-interest 
and development concerns. One of the most notable achievements coming out 
of the earlier debate was the 2001 WTO Doha Declaration on TRIPS and Public 
Heath, 13 which effectively reaffirmed the primacy of public-health objectives over 
intellectual property protection. 

Nothing similar had occurred in the recent history at WIPO. Historically the 
norm-setting and other activities of WIPO had focused on strengthening the pro- 
tection for intellectual property rights and on advancing the global harmonization 



180 MUNOZ TELLEZ AND MUSUNGU 



of standards of protection. Moreover, although developed countries are small in 
number, compared with developing countries, the former have remained the most 
active and influential participants at WIPO, alongside industry, lawyer associa- 
tions, and other rights-holder interest groups. In terms of the role and responsi- 
bility of WIPO to contribute to the broader development goals of the UN system, 
the organization has focused on promoting the use and protection of intellectual 
property as "a tool for development" and the implementation of intellectual prop- 
erty-related obligations through the provision of technical assistance. 

The approach of the WIPO in support of exclusive intellectual property rights can 
be explained by four factors. First, developed countries are the more powerful parties 
in WIPO, representing strong intellectual property-based industries, and as such are 
responding to those industries' demand for a strong, harmonized global system that 
facilitates and reduces the cost of intellectual property protection and enforcement 
around the world. Rights-holder groups from developed countries have been able to 
form strong alliances within their home countries and between developed countries 
and have built strong and long-lasting relationships with the WIPO Secretariat. 

Second, until recently, developing countries did not make changing the rules 
of the game a priority. This was especially true for the least-developed countries, 
which are not required to implement the commitments under the TRIPS Agree- 
ment until the end of the transition period available to them. 14 In the post-TRIPS 
era and until a couple of years before the introduction of the development agenda 
proposal, the main concern and focus of the demands of developing countries at 
WIPO was to access technical and legal assistance to implement the obligations 
acquired under the 1995 TRIPS Agreement and subsequent WIPO treaties. 15 That 
remains a priority for a number of developing countries. Some have perceived that 
strengthening intellectual property protection remains in their best interests. 

However, a growing number of developing countries are increasingly wary of 
the assumed positive correlation between intellectual property and development 
and concerned that the rigidity of the intellectual property system may affect their 
ability to address public-policy issues such as access to medicines and access to 
knowledge. The changing preferences of developing countries, particularly with 
respect to the work of WIPO, have increased the divergence among the prefer- 
ences of developed and developing countries. 

Third, the national and international debate on the costs and benefits of intel- 
lectual property, especially for developing countries, is a recent one. Only a few 
years ago, the notion that strengthened intellectual property-rights protection 
promotes development remained largely uncontested. The preferences and inter- 
ests of WIPO, developing countries, and some developed-country member states 
have evolved along with the debate. 



A2K AT WIPO l8l 



Finally, industry, lawyer associations, and other rights-holder interest groups 
historically have enjoyed a strong presence and deep influence at WIPO, reflecting 
the interests of the countries in which they originate. It is only in recent years that 
the participation of development-oriented and public-interest nongovernmental 
organizations at WIPO has increased significantly. 16 

THE FORMAL PROCESS FOR ESTABLISHING A DEVELOPMENT AGENDA FOR WIPO 

The process for establishing a development agenda for WIPO was formally initi- 
ated when the WIPO General Assembly unanimously agreed at its 2004 annual 
session to consider the proposal by the "Friends of Development" and other 
proposals that other member states might submit on the subject. 17 Further, the 
General Assembly agreed on the future process to examine the specific sugges- 
tions contained in the original development agenda proposal and any additional 
proposals. 18 Two years later, a multiplicity of proposals for a WIPO Development 
Agenda were on the table. 19 

The 2006 General Assembly then faced the daunting task of determining how 
to move forward on the basis of a list of the 111 proposals submitted by member 
states. The proposals were grouped under six rubrics: technical assistance and 
capacity building; norm setting, flexibilities, and public policy and the public 
domain; technology transfers, information and communication technology, and 
access to knowledge; assessments, evaluations, and impact studies; institutional 
matters, including mandates and governance; and other issues. 20 The multiplicity 
of proposals made consensus building difficult, even among developing countries. 
Coalition building between the proponents and other interested stakeholders, such 
as civil-society organizations, also became a challenge. Given that the members 
could not come to any agreement, the General Assembly renewed the mandate 
of the Provisional Committee on the development agenda for the committee to 
accelerate their deliberations, report back, and make recommendations to the 2007 
General Assembly. 

After three years of intense debate and negotiations, member states finally 
agreed, in September 2007, on the need and method to establish permanently the 
development agenda for WIPO. Forty-five recommendations or proposals were 
necessary to mainstream development into the different WIPO program and activ- 
ities. 21 The next phase will be to implement the proposals effectively, including 
defining the expected outcomes and deliverables and providing financing for the 
respective activities. To do so, the Committee on Development and Intellectual 
Property, which began meeting in early 2008, was established. Progress, however, 
has been slow, and no concrete implementation plan had been agreed upon at the 
time this text was written, in August 2008. 



182 MUNOZ TELLEZ AND MUSUNGU 



The committee has three main tasks: to develop a work program for implemen- 
tation of the adopted recommendations; to monitor, assess, discuss, and report on 
the implementation of all recommendations adopted and for that purpose coor- 
dinate with relevant WIPO bodies; and to discuss intellectual property issues and 
development-related issues as agreed upon by the committee, as well as those 
decided by the General Assembly. 

CONCEPTUAL FRAMING AND PROCESS STRATEGIES 

How could the WIPO Development Agenda succeed, given the prior dominance of 
wealthy countries and business interests in its standard-setting and rule-making 
processes? One key ingredient of the success of the development agenda was the 
solid conceptual framework on which the original proposal was built. The pro- 
posal was framed by the "Friends of Development" in a way designed to reduce 
divergence among the preferences and interests of the powerful states and rights- 
holder groups, on the one hand, and developing countries and public-interest 
groups, on the other. 

More specifically, the original development agenda proposal was built on two 
main concepts that challenged the general view hitherto widely held at WIPO — 
that neither intellectual property protection nor harmonization of intellectual 
property laws leading to higher protection in all countries, irrespective of their 
levels of development, can be seen as ends in themselves and that WIPO, as a 
specialized UN agency that is mandated to promote technological innovation and 
the transfer of technology, must explicitly support the UN's broader develop- 
ment goals. The power of these concepts is signaled by the fact that they were 
not contested by any member state. The kind of conceptual framework on which 
the original proposal was built was vital to achieve a positive response from whole 
membership of WIPO to the discussion of the proposal for the establishment of a 
development agenda. 

Another ingredient of the proposal by the "Friends of Development" was the 
clarity they offered regarding the core problem and the measures they proposed to 
address it. For this reason, these countries could no longer be dismissed as simply 
complaining, but offering no direction. 

The original development agenda proposal identified five main areas to be 
prioritized in reforming WIPO into a development-friendly organization: WIPO- 
mandate and norm-setting activities; transfers of technology; the implications 
of intellectual property enforcement; technical cooperation and assistance; 
and the concerns of all stakeholders, in particular, those of groups representing 
civil society. Within each of the areas, the perceived problems were presented 
together with the measures considered necessary to redress them. In a subsequent 



A2K at wipo 183 



submission, the "Friends of Development" elaborated further elements and mea- 
sures. The identification and prioritization of issues helped to refine the position 
of the proponents and the expected outcomes. It also served to rally increased 
support from other developing countries and from groups outside of WIPO. 

To succeed in establishing a development agenda also required sustained and 
coordinated leadership by the those making the demands for it. While the devel- 
opment agenda sought to institute reforms primarily aimed at benefiting develop- 
ing countries and other stakeholders from civil society that previously had not 
been admitted into the process of setting the WIPO agenda, a core group of mem- 
ber states, including Argentina, Brazil, Egypt, and South Africa, in fact led the ini- 
tiative, expending the most political capital. Over time, leadership also emerged 
among the developed countries, the United Kingdom and Netherlands being 
notable here. 

Despite the framing of the proposals as "development proposals," however, 
there was no guarantee that developing countries would agree on the elements of 
the development agenda — or even that they would all support it. Many countries 
did not formally sign onto the various documents setting forth the demand for 
the new agenda or actively participate in the formal deliberations. And while most 
developing countries did agree on the basic elements of the new agenda, they dis- 
agreed on the specifics. How important was it to change how WIPO did "technical 
assistance," compared with the goal of reforming its norm-setting processes? How 
quickly should the changes be implemented? Differences on issues such as these 
led countries to submit competing proposals, diluting the strength of development 
agenda proponents and diffusing their demands at various points. 

THE ROLE OF NONGOVERNMENTAL ACTORS 

One of the most important factors that contributed to advancing the development 
agenda process was the active engagement of a broad range of nongovernmen- 
tal stakeholders. While the proposal to incorporate the "development dimension" 
in WIPO was led by a group of developing-country governments, the initiative 
received important support and input from a broader constituency in both devel- 
oping and developed countries. The proposal for the WIPO Development Agenda 
was taken as an opportunity to consolidate and give coherence to the multiple 
initiatives and campaigns to reform the global governance of knowledge and tech- 
nology. One of the important inputs to the development agenda process was the 
September 2004 "Geneva Declaration on the Future of WIPO." 22 

The declaration, as already noted, was drafted after a meeting in Geneva orga- 
nized by the TACD that brought together various stakeholders from civil soci- 
ety, including nongovernmental organizations, public-health activists, consumer 



184 MUNOZ TELLEZ AND MUSUNGU 



groups, academics, scientists, Nobel Prize laureates, and businesses. The declara- 
tion argued, among other things, that the WIPO Development Agenda created the 
first real opportunity to debate the future of WIPO. 

The original development agenda proposal was also identified by various 
civil-society groups as part of a broader agenda to reform global institutions and 
regimes as they affect innovation, access to knowledge, and creative activity. 
Accordingly, the declaration broadened the conceptual basis of the WIPO Develop- 
ment Agenda beyond the emphasis on development as an issue of primary concern 
for developing countries. Development concerns were brought together with a 
wide range of public-interest and other concerns shared by constituencies in both 
the Global North and the Global South. The A2K proposals are an example. The 
declaration also affirmed that the WIPO Development Agenda was an agenda not 
only for developing countries, but for everyone. 

The engagement with and support for the WIPO Development Agenda process 
by civil-society groups in the North helped in dealing with some of the difficult 
developed countries, such as the United States. Such member states, though pow- 
erful, could not ignore their own citizens and the local interests represented at 
WIPO through civil-society groups. These groups also brought important tech- 
nical expertise to the debate. Important collaboration established among devel- 
oping countries, particularly the "Friends of Development," and civil-society 
stakeholders ensured that the concerns of civil-society groups found their way 
into the specific proposals of the WIPO Development Agenda, such as the initia- 
tive for a treaty on A2K and commitments to increase efforts to bring civil-society 
groups into the WIPO discussions and to more open consultations and events in 
which civil-society groups could present their views to member states. 

THE EFFECT OF THE DEVELOPMENT AGENDA ON A2K COALS 

While it is premature to evaluate the actual impact and/or success of the WIPO 
Development Agenda, given that the process for its implementation formally began 
only in 2008, the initiative has already brought about significant changes in the 
dynamics in the organization. In terms of substance, the development agenda 
process has served to attenuate the historical bias in WIPO policy making toward 
developed-country and rights-holder interests, as well as the dogmatic discourse 
on the benefits of strong intellectual property protection and harmonization. It 
has also allowed and stimulated a more open, participatory, and fact-based debate 
on the relationship between intellectual property and development and the public 
interest, as well as on the concerns voiced by the A2K communities. Ongoing norm- 
setting processes and discussions at WIPO, such as the proposed treaty on the pro- 
tection of broadcasting organizations, have also been influenced by the debate on 



A2K AT WIPO 185 



establishing a development agenda. In terms of process, developing countries have 
taken a more active role in the discussions and in articulating their demands. Like- 
wise, a broader range of civil-society actors are effectively engaging in WIPO. 

In the longer term, the WIPO Development Agenda has the potential to do four 
things: establish a set of general principles on knowledge governance and intel- 
lectual property, provide a substantive program of work for WIPO, ensure good 
governance and the democratization of WIPO, and establish a basis for evidence- 
based standard setting and rule making in the organization. 23 The continued 
participation of constituencies concerned with A2K will be critical in realizing 
this potential. 

THE PROPOSED WIPO TREATY ON THE PROTECTION OF 
BROADCASTING ORGANIZATIONS 

In the post-TRIPS period, as already noted, WIPO has continued to advance new 
intellectual property norms and standards. One such area of work has taken place 
under the so-called "digital agenda." The digital agenda in WIPO has focused on 
adapting copyright and related proprietary forms of protection to the digital envi- 
ronment. 24 In the past ten years, the international protection of copyright and 
related rights has been expanded significantly to include new rights, extended 
terms of protection, and new subject matter, such as computer programs and data- 
bases. Under the auspices of WIPO, the scope of copyright protection has also 
been extended to create paracopyright regimes allowing copyright and related 
rights holders to make use of digital technology to gain greater control over the 
access, use, and distribution of content in electronic and digital form. 

The most notable example to date is the WIPO Copyright Treaty and the WIPO 
Performances and Phonograms Treaty, which came into force in 2002. The WIPO 
Copyright Treaty and the WIPO Performances and Phonograms Treaty — commonly 
referred to as the "Internet Treaties" — extend protection for copyright and related 
rights in the digital environment and create new legal obligations to support the 
protection of on-line works via technological means. The new legal framework cre- 
ated by the Internet Treaties to control access to works in electronic and digital 
form effectively gives rights holders greater control over content. 25 

One of the main concerns, from an A2K perspective, is that government-backed 
technological-protection measures may render inapplicable the limitations and 
exceptions to access and use of works protected by copyright and related rights, 
such as for noncommercial research and educational purposes, and that, accord- 
ing to the WIPO Copyright Treaty and the WIPO Performances and Phonograms 
Treaty, may be devised as appropriate for the digital environment. This is because 



186 MUNOZ TELLEZ AND MUSUNGU 



technological protection measures effectively block access to works, irrespective 
of the reason why access is sought, given that the technologies cannot distinguish 
whether the circumventing purpose is lawful or not. The problem becomes more 
acute when national legislation implementing the respective WIPO Copyright 
Treaty and the WIPO Performances and Phonograms Treaty obligations go as far as 
prohibiting not only the act of circumventing a technological-protection measure, 
but also the manufacture of and trade in devices that may be used to circumvent 
technological-protection measures, as in the case of the United States 1998 Digital 
Millennium Copyright Act. The experience of countries implementing paracopy- 
right legislation shows that even when limitations and exceptions are defined in 
national law, technological-protection measures can prevent their exercise. 

Notwithstanding these concerns, WIPO continued to be engaged in efforts to 
create additional rights for new players in the name of adapting existing rights to 
the digital environment. It is in this context that we examine the demand for and 
the debate relating to the protection of broadcasting organizations. 

THE DEMAND FOR FURTHER PROTECTION FOR BROADCASTING ORGANIZATIONS 

After the adoption of the WIPO Copyright Treaty and the WIPO Performances 
and Phonograms Treaty, audiovisual performers and broadcasting organizations 
demanded negotiations on new international treaties to extend and update the pro- 
tection they enjoyed in the same manner that the two treaties had done for authors 
of creative works and the music recording industry. In the history of the initiative 
for the protection of broadcasting organizations, we can see a microcosm of the 
challenges to and the potentially revolutionary nature of the development agenda. 

Starting in 1998, discussions commenced at WIPO on a proposed treaty on 
the protection of broadcasting organizations. Evidence of the direct influence of 
broadcasting organizations on the discussions is that the first treaty proposal was 
made by a coalition of broadcasting unions, which, according to the WIPO struc- 
ture, fall under the category of nongovernmental organizations — NGOs. (NGOs 
are the only category under which any type of nongovernmental actor, whether 
industrial, commercial and/or nonprofit, noncommercial, can participate at WIPO 
as an observer.) Although according to WIPO rules, it is only member states that 
can officially submit proposals. In 1999, the WIPO Secretariat placed on the agenda 
of the second session of the Standing Committee on Copyrights and Related Rights 
the treaty proposals submitted by groups of broadcasting organizations, most 
from Europe and Japan. 26 At the time, the submissions by member states on the 
issue were not drafted in treaty form. 

As of 2001, the question of improving the protection of the rights of broadcast- 
ing organizations by way of a proposed new international treaty became the main 



A2K at wipo 187 



item on the agenda of the standing committee. The longstanding chair of the com- 
mittee, Mr. Jukka Liedes, a representative of the government of Finland, pressed 
member states to submit proposals for the treaty's language. The subsequent basis 
for the discussions was a compilation of these proposals from member states by 
the WIPO Secretariat. The second compilation included proposals by Argentina, 
Cameroon, the European Communities and its Member States, Honduras, Japan, 
Kenya, Mexico, Paraguay, Tanzania, Ukraine, and, at a later stage, the United 
States. 27 By November 2003, the Standing Committee on Copyrights and Related 
Rights had agreed to continue discussions in April 2004, based on a consolidated 
draft text with explanatory comments that were prepared and distributed by the 
chair of the committee. Ultimately, it was up to member states to consider whether 
to convene a diplomatic conference, the last step in the treaty-making process at 
WIPO. It is at this stage that the initiative failed. 

THE ROLE OF THE A2K MOVEMENT 

The initiative failed because the consolidated text presented by the chair of the 
Standing Committee on Copyrights and Related Rights in no way reflected a con- 
sensus among member states. In a meeting in June 2004, it became apparent that 
there was no agreement on the objective of the treaty, or on the nature and scope 
of the protections it would offer for broadcasters, or even on evidence for the need 
for the specific rights proposed. However, its main proponents, including the Euro- 
pean Union and Japan, rights-holder groups (particularly broadcasting organiza- 
tions), and the very active WIPO Secretariat and chair of the committee continued 
to push strongly for the conclusion of the treaty. 

Some contentious issues in the proposed treaty included proposals for exten- 
sion of the scope of coverage of the rights currently granted to broadcasting orga- 
nizations under the Rome Convention; 28 additional rights, such as the exclusive 
right to authorize or prohibit the retransmission of broadcasts following what is 
known as the "fixation" of such broadcasts — their reduction to material form; 
the addition of new beneficiaries of protection, not only traditional broadcasting 
organizations, but also cablecasting organizations and possibly simulcasting and 
Webcasting organizations; more restrictive limitations and exceptions to the rights 
conferred in the treaty, compared with the WIPO Copyright Treaty and the WIPO 
Performances and Phonograms Treaty; and more stringent obligations on techno- 
logical-protection measures and digital rights management (DRM) than those con- 
tained in those treaties. 29 

In previous meetings of the Standing Committee on Copyrights and Related 
Rights, many member states, particularly developing countries, had not actively 
participated in the discussions on the protection of broadcasting organizations. 



MUNOZ TELLEZ AND MUSUNGU 



Moreover, a review of the reports of the committee and the discussions on the 
proposed Broadcasting Treaty in the WIPO General Assembly reveal that the par- 
ticipation and technical input of nongovernmental observers in the discussions 
was largely dominated by rights-holder groups, particularly groups representing 
broadcasting organizations. 30 

From June 2004 onward, however, there was a significant change. In particu- 
lar, there was significant increase in the participation of consumer, public-interest, 
and development-oriented nongovernmental observers and representatives of the 
technology industry. 31 The participation of new players with technical expertise 
and the addition of the voices of different stakeholders brought about an impor- 
tant change in the dynamics and substance of the deliberations. This was a very 
important change, since no serious, in-depth debate on the implications of the 
proposed treaty provisions had ever taken place in the committee. Among other 
things, these groups questioned the broad scope of the treaty, the nature of the 
proposed rights, and their duration, and they highlighted possible unintended 
consequences, especially for the business models of the technology industry. 

The new players created coalitions among public-interest and consumer groups 
in both the North and South and had a significant impact on the positions of key 
member states concerned with the potential negative impact of the proposed 
treaty on access to information and knowledge and on technological innovation. 
One of the main achievements of the new players was to bring representatives 
of the information technology, electronics, and telecommunications industries 
together with groups representing performer groups, library associations, devel- 
opment activists, public-interest and consumers on the basis of these concerns to 
build together a dynamic and broad-based coalition to oppose the proposed treaty 
in its current form. 32 AT&T, Dell, Intel, Verizon, and Sony were among the corpora- 
tions that joined the coalition. 

The involvement of the industry players was significant because it blunted the 
rhetoric of the broadcasting lobby and their allies. It dawned on many, even the 
staunchest supporters of the treaty within governments, that if some of the most 
successful companies in the digital era had a problem with the treaty, one needed 
to stop and think again. It was no longer easy to dismiss criticism as simply the 
work of a few NGOs opposed to intellectual property rights. 

The parallel discussions on the WIPO Development Agenda also had an impor- 
tant impact on the subsequent debate on whether the Broadcasting Treaty was nec- 
essary. More member states demanded further deliberations on the proposed provi- 
sions, impact assessments, and studies before moving forward. These were all ideas 
that had been raised in the context of the discussion on the development agenda. 

Ultimately, as a result of all the above factors, the 2006 WIPO General 



A2K at wipo 189 



Assembly rejected the recommendation of the Standing Committee on Copyrights 
and Related Rights to call for a diplomatic conference and instead asked for the 
convening of two special sessions of the committee to deliberate further on the 
essential elements of the proposed treaty — namely, its objectives, specific scope, 
and objects of protection. The General Assembly also clarified that the scope of 
the treaty would be limited to the protection of broadcasting signals from piracy, 
as opposed to granting broadcasting organizations additional rights. The two spe- 
cial sessions of the committee did not lead to any agreement on the basic ele- 
ments of the proposed treaty, and consequently, the 2007 WIPO General Assembly 
decided that a diplomatic conference would not be convened in the near future. 

The result is that the issue is no longer at the top of the agenda of the Stand- 
ing Committee on Copyrights and Related Rights. Though the proponents have not 
given up their quest, it is likely to take some time before there can be another 
attempt to craft a treaty with such a broad scope, in light of there being little evi- 
dence either of a need for it or of its potential impact. 

THE FUTURE OF A2K IN WIPO 

The A2K movement has made an important contribution to the more systematic 
introduction of public-interest concerns into the deliberations of WIPO, particu- 
larly with respect to access to and sharing of on-line works for educational and 
research purposes. The inclusion of important A2K-related proposals in the WIPO 
Development Agenda and the halting of the discussions on the proposed WIPO 
Broadcasting Treaty clearly demonstrate the success achieved. However, looking 
forward to the future of the A2K agenda in WIPO, many challenges still lie ahead. 

While it is unlikely that new momentum will emerge for the proposed WIPO 
Broadcasting Treaty, there is a need to continue to advance the A2K agenda in the 
Standing Committee on Copyrights and Related Rights, as well as in other WIPO 
bodies, on issues such as limitations and exceptions to intellectual property rights. 
The implementation of the A2K proposals of the WIPO Development Agenda will 
also require significant work to identify clear and specific actions that will enable 
the proposals to be realized. To maximize the potential impacts of the A2K initia- 
tives in WIPO, the A2K movement will also need to work toward bringing greater 
coherence to related initiatives being pursued in other UN agencies and other 
international organizations. 

Both the development agenda and the experience with the proposed treaty on 
broadcasting organizations demonstrate the flaws in WIPO's approach to intellec- 
tual property protection and provide a new opportunity for exploring alternative 
models of innovation and collaboration. 



190 MUNOZ TELLEZ AND MUSUNGU 



The future of A2K at WIPO is therefore bright, provided that the A2K move- 
ment and those concerned with A2K issues double their efforts to put on the table 
proposals that can benefit the needs of creative and competitive industries and 
businesses and the public interest, including development and consumer interests 
generally. Only the battles of this decade have been won. The war of the century — 
for the control of knowledge — may just be beginning. 



NOTES 

World Intellectual Property Organization, "Proposal to Establish a Development Agenda for 
the WIPO: Elaboration of Issues Raised in Document Wo/Ga/31/ll," (April 6, 2006), WIPO 
doc. no. IIM1/4, para. 2, available on-line at http://www.wipo.int/edocs/mdocs/mdocs/en/ 
iim_l/iim_l_4.pdf (last accessed April 4, 2009). 

The proposal to establish or to adopt a treaty on access to knowledge and technology was 
originally proposed by the Group of the "Friends of Development." See Provisional Com- 
mittee on Proposals Related to a WIPO Development Agenda, "Working Document for the 
Provisional Committee on the Proposal Related to a WIPO Development Agenda (PCDA)" 
(February 20, 2007), WIPO doc. no. PCDA/3/2, Annex B, proposal 34, dated February 20, 
2008, available on-line at http://www.wipo.int/edocs/mdocs/mdocs/en/pcda_3/pcda_3_2. 
pdf (last accessed April 4, 2009). 

World Intellectual Property Organization, "Proposal for the Establishment of a Development 
Agenda for WIPO," (April 6, 2005), WIPO doc. no. WO/GA/31/ll, available on-line at http:// 
www.wipo.int/edocs/mdocs/mdocs/en/iim_l/iim_l_4.pdf (last accessed April 5, 2009). The 
proposal was then developed further in "Proposal to Establish a Development Agenda for 
the WIPO: Elaboration of Issues Raised in Document Wo/Ga/31/ll," (April 6, 2006), WIPO 
document IIM1/4 and World Intellectual Property Organization, "Proposal for the Establish- 
ment of a Development Agenda for WIPO: A Framework for Achieving Concrete and Practical 
Results in the Near and Longer Terms" (February 12, 2006), WIPO doc. no PCDA/1/5 (last 
accessed April 5, 2009). 

The "Friends of Development" group included Argentina, Bolivia, Brazil, Cuba, the Domini- 
can Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and 
Venezuela. The majority of WIPO developing-country members, though refraining from offi- 
cial cosponsorship, expressed support for the proposal. 

See the "Geneva Declaration on the Future of WIPO," available on-line at http://www. 
cptech.org/ip/wipo/futureofwipodeclaration. pdf (last accessed April 6, 2009). See also 
James Boyle, "A Manifesto on WIPO and the Future of Intellectual Property," Duke Law and 
Technology Review 9 (2004), available on-line at http://www.law.duke.edu/journals/dltr/ 
articles/2004dltrooog.html (last accessed April 6, 2009). 

Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and 
Development Policy (2002), available on-line at http://www.iprcommission.org/papers/ 



A2K AT WIPO 191 



pdfs/final_report/CIPRfullfinal.pdf (last accessed April 5, 2009). 

7 Information on the Bellagio Dialogues is available at http://www.iprsonline.org (last 
accessed April 6, 2009). 

8 Sisule F. Musungu and Graham Dutfield, "Multilateral Agreement and a TRIPS-Plus World: 
The World Intellectual Property Organisation (WIPO)," TRIPS Issues Paper 3, Quaker United 
Nations Office, Geneva, and Quaker International Affairs Programme, Ottawa (2003), available 
on-line at http://www.quno.org/geneva/pdf/economic/Issues/Multilateral-Agreements- 
in-TRIPS-plus-English.pdf (last accessed April 6, 2009). 

9 For detailed explanations of these concerns, see Musungu and Dutfield, "Multilateral Agree- 
ment and a TRIPS-Plus World," and Boyle, "A Manifesto on WIPO and the Future of Intellec- 
tual Property." 

10 As illustrated by the adoption, in 1996, of the WIPO Copyright Treaty and the Performances 
and Phonograms Treaty. 

11 For detailed discussions see Carlos M. Correa and Sisule Musungu, "The WIPO Patent Agenda: 
Risks for Developing Countries," T.R.A.D.E Working Papers 12, South Centre, Geneva, avail- 
able on-line at http://www.southcentre.org/index. php?option=com_content&task=view&id 
=76&Itemid=67 (last accessed April 7, 2009). 

12 The 2002 report of the UK Commission on Intellectual Property Rights, Integrating Intellec- 
tual Property Rights and Development Policy, is one of the core works examining the rela- 
tionship between intellectual property rights and development. The report outlined the 
real impacts of intellectual property, both positive and negative, on various areas, including 
health and agriculture. A key conclusion that surfaced from the report is that the impact 
of intellectual property rights and their use as an instrument of public policy will vary sig- 
nificantly among countries, depending on the level of scientific and technological capabil- 
ity and socioeconomic circumstances. Other important work on development and intellectual 
property included the various studies discussed and resulting from the Bellagio Dialogues 
on Development and Intellectual Property, as well as those published by the Quaker United 
Nations Office in Geneva and the Quaker International Affairs Programme, including Sisule 
F. Musungu, "Rethinking Innovation, Development and IP in the UN: WIPO and Beyond," 
Issues Papers 5, Quaker International Affairs Programme, Ottawa, 2005, available on-line at 
http://www.quno.org/geneva/pdf/economic/Issues/TRIPS53.pdf. 

13 The Doha Declaration on the TRIPS Agreement and Public Health, November 14, 2001, 
WTO doc. no. WT/MIN(oi)/DEC/2, is available on-line at http://www.wto.org/english/ 
theWTO_e/minist_e/minol_e/mindecl_trips_e.pdf (last accessed March 24, 2009). See also 
Sangeeta Shashikant's essay, "The Doha Declaration on TRIPS and Public Health: An Impetus 
for Access to Medicines," in this volume. 

14 The current transition period for least-developed countries runs until July 1, 2013 or until the 
date on which the country graduates from least-developed-country status. There is a sepa- 
rate timeline with respect to patent protection for pharmaceuticals, which runs until 2016. 

15 WIPO, under a special agreement with the WTO signed in 1995, is the main multilateral pro- 
vider of intellectual property technical assistance to WIPO and WTO developing-country and 
least-developed-country members. 

16 See Ahmed Abdel Latif's essay, "The Emergence of the A2K Movement: Reminiscences and 
Reflections of a Developing-Country Delegate," in this volume. 

17 Report of the WIPO General Assembly: Thirty-First (15th Extraordinary) Session, September 



192 MUNOZ TELLEZ AND MUSUNGU 



27-0ctober 5, 2004 (October 5, 2004), WIPO doc. no. WO/GA/31/15, para. 128, available on- 
line at http://www.wipo.int/eclocs/mdocs/govbody/en/wo_ga_3i/wo_ga_3i_i5.pdf (last 
accessed April 8, 2009). 

18 It also agreed that WIPO would organize together with the United Nations Conference on 
Trade and Development, the United Nations Industrial Development Organization, the World 
Health Organization and the World Trade Organization an international seminar open to all 
stakeholders to discuss intellectual property and public policy and intellectual property and 
development. This took place on May 2 and 3, 2005. While the event was the first of its kind 
at WIPO, it is unclear whether it influenced the Development Agenda process thereafter. The 
program is available at http://www.wipo.int/edocs/mdocs/mdocs/en/isipd_05/isipd_05_ 
inf_l_prov.pdf (last accessed April 8, 2009). 

19 In 2005, the proposals were discussed in the newly created Inter-sessional Intergovernmen- 
tal Meeting on a Development Agenda for WIPO. In 2006, the meeting ceased to exist, and 
the discussion moved to the newly created Provisional Committee on Proposals Related 
to a WIPO Development Agenda until September 2007 The proposals are contained in the 
submissions by the following members: Argentina and Brazil, cosponsored by the "Friends 
of Development" (WIPO doc. nos. WO/GA/31/ll, WO/GA/31/14, both available on-line at 
http://www.wipo. int/meetings/en/details.jsp?meeting_id=6309, and IIM/1/4, available 
at http://www.wipo.int/edocs/mdocs/mdocs/en/iim_l/iim_l_4.doc); the African Group 
(WIPO doc. no, IIM/3/2, available at http://www.wipo.int/edocs/mdocs/mdocs/en/iim_3/ 
iim_3_2.doc); Bahrain, cosponsored by Jordan, Kuwait, Lebanon, Libyan Arab Jamahiriya, 
Oman, Qatar, Saudi Arabia, the Syrian Arab Republic, the United Arab Emirates, and Yemen 
(WIPO doc. no. IIM/2/2, available at http://www.wipo.int/edocs/mdocs/mdocs/en/iim_2/ 
iim_2_2.doc); Colombia (WIPO doc, no. PCDA/1/3, available at http://www.wipo.int/edocs/ 
mdocs/mdocs/en/pcda_l/pcda_l_3.doc); the United States (WIPO doc. no. IIM/1/2, avail- 
able at http://www.wipo.int/edocs/mdocs/mdocs/en/iim_1/iim_1_2.doc); Mexico (WIPO 
doc. no. IIM/1/3, available at http://www.wipo.int/edocs/mdocs/mdocs/en/iim_l/iim_l_3. 
doc); and the United Kingdom (WIPO doc. no. IIM/1/5, available at http://www.wipo.int/ 
edocs/mdocs/mdocs/en/iim_l/iim_l_5.doc) (all last accessed April 8, 2009). 

20 The list of ill proposals can be found in World Intellectual Property Organization, Report of 
the WIPO General Assembly: Thirty-Third (16th Extraordinary) Session, September 25-October 
3, 2006, Annex A, WIPO doc. no. WO/GA/33/10, available on-line at http://www.wipo.int/ 
edocs/mdocs/govbody/en/wo_ga_33/wo_ga_33_l0.doc (last accessed April 9, 2009). 

21 The final list of forty-five agreed recommendations for the WIPO Development Agenda, 
including nineteen recommendations for immediate implementation, are contained in World 
Intellectual Property Organization, Report of the Assemblies of the Member States of WIPO: 
Forty-Third Series of Meetings, September 24-October 3, 2007, Annexes A and B, WIPO doc. 
no. A/43/16, available on-line at http://www.wipo.int/edocs/mdocs/govbody/en/a_43/ 
a_43_l6-mainl.pdf (last accessed April 9, 2009). 

22 See n.5 above. 

23 For detailed discussions see Sisule F. Musungu, "The Development Agenda: The Implications 
for IP Governance and the Future of WIPO," Bridges 11, no. 7 (2008). 

24 The digital agenda was the initiative of WIPO Director General Kamil Idris. One of the core 
components of the digital agenda was to promote the entry into force of new WIPO treaties, 
the WIPO Copyright Treaty and the WIPO Performances and Phonograms (WPPT), before 



A2K AT WIPO 193 



December 2001. A second core component of the digital agenda was to "promote adjustment 
of the international legislative framework to facilitate e-commerce through i) the extension 
of the principles of the WPPT to audiovisual performances, ii) the adaptation of broadcast- 
ers' rights to the digital era, and iii) progress towards a possible international instrument on 
the protection of databases." For a discussion of the WIPO Digital Agenda, see Musungu and 
Dutfield, "Multilateral Agreement and a TRIPS-Plus World." 

25 For further analysis of the WIPO Copyright Treaty and the WIPO Performances and Phono- 
grams Treaty, including their practical implications, see, for example, Ruth L. Okediji, "The 
International Copyright System: Limitations, Exceptions and Public Interest Considerations 
for Developing Countries," Issue Paper 15, International Centre for Trade and Sustainable 
Development, Geneva, available on-line at http://www.iprsonline.org/unctadictsd/docs/ 
ruth%202405.pdf (last accessed April 9, 2009). In 2010, the WIPO Copyright Treaty was in 
force in eighty-eight WIPO member states, while the WIPO WPPT was in force in eighty-six 
WIPO member states. 

26 World Intellectual Property Organization, "Agenda Item 4: Protection of the Rights of Broad- 
casting Organizations: Submissions Received from Non-governmental Organizations by 
March 31, 1999," April 7, 1999, WIPO doc. no. SCCR/2/6, available on-line at http://www. 
wipo.int/edocs/mdocs/copyright/en/sccr_2/sccr_2_6.pdf (last accessed April 9, 2009). 

27 World Intellectual Property Organization, "Protection of the Rights of Broadcasting Organi- 
zations: Comparison of Proposals of WIPO Member States and the European Community and 
Its Member States Received by April 15, 2003," WIPO doc. no. SCCR/9/5, available on-line at 
http://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_5.doc, last accessed April 9, 
2009). 

28 Members of WIPO agreed to the Rome Convention for the Protection of Performers, Produc- 
ers of Phonograms and Broadcasting Organizations on October 26, 1961. It extended copyright 
protection from the author of a work to the creators and owners of the physical implementa- 
tions of that intellectual property, including the producers of audiocassettes. 

29 For a detailed history of the proposed WIPO broadcasting treaty and an analysis of the draft 
text, see Viviana Muhoz Tellez and Chege Waitara, "A Development Analysis of the Proposed 
WIPO Treaty on the Protection of Broadcasting and Cablecasting Organizations," Research 
Papers 9 (January 2007), Geneva, South Centre available on-line at http://papers.ssrn.com/ 
sol3/papers.cfm?abstract_id=l03930l (last accessed June 3, 2010). 

30 A notable exception was the role of the United Nations Educational, Scientific and Cultural 
Organization (UNESCO), as an intergovernmental observer. 

31 These included various groups, part of the Civil Society Coalition: the Electronic Frontier 
Foundation; Knowledge Ecology International, formerly the Consumer Project on Technol- 
ogy; European Digital Rights; IP Justice; and the Union for the Public Domain, among others. 

32 See for example, "Joint Statement Opposing Broadcast Treaty by Broad-Based Coalition," 
available on-line at http://drn.okfn.org/node/i35 (last accessed April 9, 2009). 



194 MUNOZ TELLEZ AND MUSUNGU 



PART THREE 



THE CONCEPTUAL TERRAIN OF A2K 




Demonstration during the sixth round of negotiations for a free-trade agreement between the United States and Thailand, 
Chiang Mai, January 11, 2006 (Cae'lle Krikorianj. 



'IP World"- Made by TNC Inc. 



Peter Drahos 



We live in a world where the rules of intellectual property (IP) and the intellectual 
property generated using those rules are globally pervasive phenomena. For exam- 
ple, in the nineteenth century, two important multilateral agreements on intellectual 
property were negotiated by some states: the Berne Convention for the Protection 
of Literary and Artistic Works (1886) and the Paris Convention for the Protection 
of Industrial Property (1883). Today, the World Intellectual Property Organization 
(WIPO) administers some twenty-three treaties on intellectual property. 

The global quantity of intellectual property being generated under the rules of 
intellectual property cannot really be accurately quantified, but it is vast. By way 
of illustration, in 2004, there were about 5.5 million patents in force around the 
world. 1 There were at least another 5 to 6 million unexamined patent applications. 
In 2006, the U.S. Patent and Trademark Office reported that there were 1,332,155 
active certificates of trademark registration in the United States. There are many 
other forms of intellectual property that one would have to add to a global stock- 
taking of intellectual property, including the number of works protected by copy- 
right, the number of plant variety registrations, the number of registered designs, 
the number of protected circuit layouts, and so on. 

One important issue is whether globalizing the rules of intellectual property and 
encouraging the production of more and more intellectual property under those 
rules will lead to a continuous increase in social welfare. In a moment, we will see 
that as a matter of theory, more intellectual property does not necessarily mean 
more social gains. This leads to the question that is the focus of this paper: If there 
are dangers and risks in continuing to expand both the rules of intellectual property 
and the production of intellectual property, why is this expansion occurring? The 
answer can entail explanations of the structural kind or of the agent-centered kind 
or something in between. This paper focuses on agents in the form of companies 



197 



and individuals, but especially on transnational corporations — TNCs. A focus on 
agents raises the possibility for social action. If the intellectual property world that 
we have today reflects certain choices and actions taken by one group of actors, 
can other actors with different views about the desirability of intellectual property 
change the direction of its growth? Our answer is a qualified yes. 

TOO MUCH INTELLECTUAL PROPERTY? 

Economic theory suggests that a society that had no intellectual property pro- 
tection at all would almost certainly not be allocating resources to invention and 
creation at an optimal level. 2 But equally, a society that went to extremes of pro- 
tection would almost certainly incur costs that would exceed the benefits. Intellec- 
tual property rights permit owners to exclude people from the use of socially valu- 
able information. At some point, allowing intellectual property owners to exploit 
this power of exclusion becomes too costly in terms of social welfare. The rules of 
arithmetic, for instance, can be used and reused endlessly. The costs of excluding 
people from the use of these rules would be very high in economic terms and in 
terms of basic human freedoms. The diagram below illustrates the proposition that 
one can have too much intellectual property protection. It also suggests that there 
is an optimal level of intellectual property protection. 

Like most abstractions, Diagram l does not capture the real-world dynamic 
complexity of the way in which intellectual property rights and the growth of 
knowledge actually interact. For example, it implies nothing about the mix of 
intellectual property systems that a society should employ. A patent system, for 
example, might not be part of an optimal mix. In the nineteenth century, both Hol- 
land and Switzerland were able to industrialize without a patent system. A patent 




STRENGTH OF IPR PROTECTION 



diagram l The strength of intellectual property rights (IPR) standards and social welfare. 



198 



system might be part of an optimal mix, but whether it is or not depends in part 
on the scope of patentability. For example, as other chapters in this book illustrate, 
the efficiency of extending patents to software, business methods, and pharma- 
ceutical products is highly debatable. 

When we come to think about optimal levels of intellectual property protec- 
tion in the context of a world of interdependent nation-states, it is clear that there 
is not one level of protection that is universally optimal for all states. It is clear 
that imitative production and learning are important to developing countries. TNCs 
operating in developing countries typically do so with higher levels of knowledge 
assets than domestic firms, for example. There is scope for domestic firms to ben- 
efit from this positive externality 3 But, whether domestic firms make productivity 
gains is profoundly affected by the property rules that govern imitative produc- 
tion. Imitative production and learning require an appropriately designed set of 
intellectual property rights (for example, rules that permit some degree of reverse 
engineering). We know, for example, that Japan for a large part of the twentieth 
century designed and used a patent system that placed the emphasis on the diffu- 
sion of knowledge, rather than on the right to appropriate knowledge. 4 

Imitative production typically requires less capital, a factor that is important 
in developing countries. If, with Ronald H. Coase, we think of property rights as 
a factor of production, it follows that those property rights should be designed 
in ways that match the comparative advantage that a country has in other factors 
of production. 5 This suggests that there will be real long-run costs for developing 
countries if they continue to participate in a global regime of intellectual property 
rights that continues to ratchet up standards of protection. Much the same conclu- 
sion follows from the theory of comparative capitalism. 6 This theory suggests that 
countries must choose their system for regulating intellectual property with an eye 
to how it will fit other crucial legal and industry policy institutions, from competi- 
tion policy to labor-market policy. Property and these other institutions form an 
organic whole. Whether or not particular property rights contribute to the well- 
being of the whole is a matter of careful diagnosis. Crucially, just like a physician, 
countries must have the freedom to design the right treatment once the diagnosis 
has revealed the source of the problem. As Jeffrey Sachs says, development eco- 
nomics must strive to be more like clinical medicine in its approach to problems. 7 

The idea that there are different optimal points of intellectual property pro- 
tection for different countries is captured in Diagram 2 below. Even if there are 
benefits for New Guinea in having a patent system (and this is an open question), 
an optimally designed patent system for New Guinea is likely to be very different 
from that of an optimal system for that of the United States. In Diagram 2, Country 
B's optimal point of intellectual property protection is well and truly passed by 



199 



the standards of protection required in order for Country A's optimal point to be 
reached. If Country B is required to harmonize with Country A's standards of pro- 
tection it is likely to be made even worse off. 

Like Diagram 1, Diagram 2 abstracts from a much more complex empirical real- 
ity. At a given point in time in a country's development history, the wrong set of 
institutional choices when it comes to intellectual property rights may drive it into 
negative territory when it comes to the welfare impacts of intellectual property 
rights. For example, a country such as New Guinea, which has a weak manufac- 
turing base and a minerals-based economy, has virtually nothing to gain from 
adopting a patent system. Yet in order to meet its World Trade Organization (WTO) 
obligations, it has adopted a patent law based on a WIPO model law. It also has a 
growing HIV/AIDS crisis. Depending on what happens in the next decade, New 
Guinea may find that as a result of its membership in the Patent Cooperation 
Treaty, it ends up being designated for pharmaceutical patent applications. Such 
patents may well complicate the New Guinea government's capacity to access the 
cheapest medicines. There are other kinds of complex interdependencies at work. 
New patent laws in countries such as India and China, which have been a source 
of low-cost pharmaceuticals, when combined with the patent law in New Guinea, 
may also complicate access. The curve for New Guinea for patents might take on 
the shape in Diagram 3 below. 8 

This brief analysis of the economics of intellectual property in the context 
of economic development suggests that it would be prudent for states to retain 
design sovereignty over intellectual property rights. Moreover, given the differ- 
ences in development among nations, one might expect to find a real diversity 
of standards of intellectual property protection. When we look at the intellec- 
tual property world, however, instead of finding diversity, we find an increasing 




STRENGTH OF IPR PROTECTION 



diagram 2 Different optimal points for different countries. 



convergence on standards of intellectual property protection. For example, all the 
members of the WTO have to comply with the standards of protection that are 
set down in the Agreement on the Trade-Related Aspects of Intellectual Property 
Rights (TRIPS). Since TRIPS came into operation, states have signed hundreds of 
bilateral agreements, many of which include provisions that deal with intellectual 
property and that set standards of protection that are higher than required under 
the minimum standards of TRIPS. 

Accompanying this global spread of intellectual property standards has been 
a vast growth in the bureaucracies that administer intellectual property rights. 
Patents, trademarks, and designs are registration systems and therefore require 
a bureaucracy that examines applications for the rights, decides on eligibility, and 
maintains a register of the rights. Patent offices are costly operations. The U.S. 
Patent and Trademark Office has a staff of some sixty- five hundred, the Japanese 
Patent Office some twenty-five hundred, and the European Patent Office approxi- 
mately five thousand. 

The costs of creating intellectual property rights do not end with administra- 
tion. Property rights that cannot be enforced are worth little. Enforcement requires 
the participation of civil courts and specialist tribunals. Increasingly, criminal- 
law-enforcement agencies have begun to play a much greater role in enforcement 
as states have moved down the path of criminalizing the infringement of intel- 
lectual property. 

Administering and enforcing intellectual property is particularly costly for 
developing countries. Should they direct their scarce scientific resources into pat- 
ent examination? In order to save on the costs of patent administration, they may 
be tempted to rely on the work of offices such as the European Patent Office or 
the U.S. Patent and Trademark Office, but will the work of these offices meet the 



STRENGTH OF IPR PROTECTION 



diagram 3 Losses and no gains. 




French police tracking 
IP infringement (Sirpa- 
gendarmerie). 



needs of developing countries? Similarly, there is a real issue as to whether devel- 
oping countries should devote scarce criminal-justice resources to enforcing what 
in the end are private monopoly privileges and what historically have been the 
subject of civil proceedings. 



THE ORIGINS OF THE IP WORLD: FROM THE MEDIEVAL PERIOD TO THE 1980S 

Historically speaking, two types of actors have been key in the processes that have 
led to the globalization of intellectual property rules and the production of intel- 
lectual property: states and companies. The sovereigns of newly emerging states 
in medieval Europe well understood the importance of capturing resources for the 
benefit of the states, resources that included knowledge. There was widespread 
warfare between the powers of Europe, of which the Hundred Years' War between 
England and France was but one example. Natural disasters such as the Black Death 
and crop failures were other sources of instability. Sovereigns found themselves 
having to compete for skilled artisans who could bring commercially and militarily 
important goods and techniques to their territories. To some extent, the compara- 
tive advantage of nations and city states was locked up by them in the guilds that 
formed around all important technologies, such as mining, the making of sailcloth, 
machines for milling or weaving, and so on. Local guilds could not, however, pro- 
vide all the innovation that the emerging states of the time demanded. Using the 
privilege system to entice foreign skilled workers to defect from their guilds and 
relocate to another territory was a natural step for sovereigns to take. It was a way 
of building comparative advantage and robbing others of theirs. For this reason, 
many monopoly privileges of the Middle Ages went to foreigners. 



Out of the medieval system of privileges that existed across Europe there 
evolved statutory forms of intellectual property, copyright and patents being the 
earliest examples. At the same time, the laws relating to the formation of corpo- 
rate personality were also evolving and being used for the purposes of business 
and trade. The links between intellectual property and the economic interests of 
companies existed early on in the history of intellectual property (for example, 
the Stationers Company and printing privileges in sixteenth-century England). 
The large-scale use by companies of systems of intellectual property evolved more 
slowly. States did not really invest in the creation of the administrative infra- 
structure needed to run systems of intellectual property rights till the nineteenth 
century So, for example, patent offices were modernized and patent fees were 
reduced. Companies in Europe and the United States began to see that patents 
could confer business opportunities not just in their domestic markets, but in 
markets abroad. The United States and the lead industrial states in Europe saw in 
intellectual property, especially patents, a means by which to increase control over 
resources that mattered in the final instance to state power. 

By the 1880s, the United Kingdom, Germany, France, and Belgium led Europe in 
terms of industrialization, and Europe led the world. For example, it accounted for 
63 percent of the world's steel production. 9 Across the Atlantic, the United States 
was making giant strides in industrialization. By 1913, its manufacturing output 
matched that of the United Kingdom, France, and Germany combined, account- 
ing for some one-third of world production. 10 Nation-states, which had become 
the principal unit of political and economic organization, saw that their economic 
supremacy depended on their capacity to compete in the heavy industries of coal, 
iron, and steel, as well as in the new industrial technologies based on chemicals 
and electricity. One of the important features of this period of industrial growth in 
Europe and the United States was the increase in monopolistic business combina- 
tions in the form of cartels, trusts, or syndicates. 11 Put simply, firms colluded and 
cooperated in the marketplace. There were, of course, some attempts by govern- 
ments to deal with this, the passage of the Sherman Antitrust Act in 1890 in the 
United States being the single most notable example. In Europe, some industries 
rapidly organized themselves into national cartels. In Germany, for example, the 
firms in the coal-tar dye industry formed special agreements to regulate production 
and the exchange of patented knowledge. By 1913, 88 percent of world chemical dye 
production was controlled by German industry, with the companies being part of 
one of two agreements that regulated the industry and that were merged into one 
in 1916. 12 

The institutions of intellectual property were regularly the subject of attack by 
skeptics. In the nineteenth century, the patent system narrowly survived an attack 



203 



by a coalition of free traders, economists, and some politicians. The arguments 
against the patent system were much the same as today. These included the view 
that prizes and other payments are a superior way to create incentives for inven- 
tors, that the monopoly costs of the patent system outweigh its incentive effects, 
that there are doubts about its incentive effects in any case, that patents inhibit 
trade across borders, and that patents are not natural rights. 13 Fritz Machlup and 
Edith Penrose suggest that one of the main ways in which defenders of the patent 
system prevailed was by the use of sophisticated techniques of propaganda. It is a 
point that remains relevant today. Critics of intellectual property rights often find 
themselves embroiled in propaganda wars in which criticism of the design of intel- 
lectual property is framed as an attack on private property rights and the rights of 
investors. Corporate intellectual property owners use this rhetorical framing tech- 
nique to shroud the fact that they are pushing states into expanding and enforcing 
private monopoly rights. 

In any case, because the lead industrial states at the beginning of the twenti- 
eth century realized that their military and economic power depended on the key 
industries of coal, iron, steel and chemical production, they concluded that if the 
lead industrialists in these sectors supported the patent system, so would they. 
Not for the last time, states bought into the belief that strong intellectual property 
rights would make for a strong state. 

For the first half of the twentieth century, states concentrated on developing 
the two nineteenth-century pillars of the international framework for intellec- 
tual property — the Berne Convention and the Paris Convention. In general, the 
companies that participated in domestic and international processes of intellec- 
tual property lawmaking tended to view those processes from the perspective of 
national businesses protecting national or regional interests. American publishers, 
for example, were not a strong force for encouraging the United States to join the 
Berne Convention (the U.S. did not join till 1988). The publishing cartels that were 
formed in the first half of the twentieth century between U.S. and UK publish- 
ers (known as the British Publishers Traditional Markets Agreement) were more 
defensive in nature, dividing up the world into territories where one would agree 
not to trespass on the business interests of the other. 

In some industries, the chemical and pharmaceutical industries being an exam- 
ple, some companies did have an aggressive international focus. The German chem- 
ical industry employed thousands of chemists, and their output was measured by 
thousands of patents. Companies such as Bayer and Badische Anilin Fabrik held 
hundreds of patents in America. German industry held in total approximately 
forty-five hundred U.S. patents, creating a "colossal obstacle to the development 
of the American dyestuff industry." 14 But there was also sufficient flexibility in the 



204 



international system for states to be able to defend their national interests along 
with companies that saw themselves as nationally, rather than globally based. A 
good example of the scope of this flexibility was the change that the United King- 
dom made to its patent law in 1919 preventing the patentability of chemical com- 
pounds. Chemical processes remained patentable. Fearing the might of IG Farben, 
British industry pursued a strategy of free riding by concentrating on inventing 
better processes that duplicated German dyestuffs. 

For the most part, companies and industries took an interest in those areas of 
intellectual property that directly affected their particular business model and did 
not operate in lobbying terms across all of intellectual property. The publishers 
were active in copyright, pharmaceutical companies were active in patents, and a 
variety of industries were active in trademarks. A cross-cutting, unified approach 
to intellectual property by companies did not take place until the 1980s, when they 
united on a common agenda for an international intellectual property framework 
in the context of the General Agreement on Tariffs and Trade Uruguay Round of 
Multilateral Trade Negotiations. 

TNCS AND TRIPS 

The antecedents of this unified approach to intellectual property lie in the rise of 
transnational corporations after the Second World War. TNCs are characterized by 
the fact that their investment strategy takes the form of foreign direct investment in 
production, sales, and distribution. The vehicles of this foreign direct investment are 
foreign affiliates that allow the TNC to manage a centrally coordinated foreign direct 
investment strategy across a large number of countries. TNCs are companies that 
have a genuinely global investment philosophy. At base, TNCs evaluate the regula- 
tory systems of nation-states in terms of the impact of those systems on their ability 
to make, control, and manage their investments in those states. It was this invest- 
ment philosophy that ended up unifying different TNCs during the course of the 
Uruguay Round on the crucial issues of trade in services and intellectual property. 

The U.S. pharmaceutical industry, and Pfizer, in particular, turned out to be 
leaders in the Uruguay Round because pharmaceutical companies were among 
the first companies to change into genuine TNCs. Pfizer, facing strong domestic 
competition in the production of penicillin after the end of World War II, moved 
to a program of expansion into developing country markets. Pfizer's move into 
overseas markets was the idea of John "Jack" Powers, Jr., assistant to the presi- 
dent, then president himself of the company, who in effect globalized Pfizer as a 
firm. Out of his initiative was born Pfizer International. Manufacturing plants and 
distribution networks were established "in countries ranging from Argentina to 



205 



Australia and Belgium to Brazil." 15 By 1957, Pfizer International had achieved more 
than its target of $60 million overseas sales. 

Pfizer's investment in developing countries sensitized it to the threat to inter- 
national markets that generic manufacturers in countries such as India posed for 
the pharmaceutical research-and-development industry. It also saw that devel- 
oping countries were increasingly using their superior numbers in WIPO to put 
forward initiatives that favored their own position as net importers of foreign 
technology. During the early 1980s, a small group of Washington-based policy 
entrepreneurs had conceived the idea of linking the intellectual property regime 
to the trade regime. Pfizer executives, including the CEO Edmund Pratt, were 
among the leading proponents of this idea. Essentially, their policy idea was to get 
an agreement on intellectual property into the General Agreement on Tariffs and 
Trade (GATT). Among other things, such an agreement would be enforceable under 
GATT dispute-resolution procedures. Existing intellectual property treaties such 
as the Berne Convention lacked meaningful enforcement mechanisms. Moreover, 
the wide membership of GATT meant that the enforcement mechanism would be 
potentially available for use against more states. 

Pfizer executives used their established business networks to disseminate the 
idea of a trade-based approach to intellectual property. Pratt began delivering 
speeches at business forums such as the National Foreign Trade Council and the 
Business Round Table, outlining the links between trade, intellectual property, and 
investment. As a CEO of a major U.S. company, he could work the trade-associa- 
tion scene at the highest levels. Other Pfizer senior executives also began to push 
the intellectual property issue within national and international trade associations. 
Gerald Laubach, president of Pfizer Inc., was on the board of the Pharmaceuti- 
cal Manufacturers Association and on the Council on Competitiveness set up by 
President Ronald Reagan; Lou Clemente, Pfizer's general counsel, headed up the 
Intellectual Property Committee of the U.S. Council for International Business; 
Bob Neimeth, Pfizer International's president, was the chair of the U.S. side of 
the Business and Industry Advisory Committee to the Organisation for Economic 
Co-operation and Development. The message about intellectual property went out 
along the business networks to chambers of commerce, business councils, business 
committees, trade associations, and peak business bodies. Thus, Pfizer executives 
who occupied key positions in strategic business organizations were able to recruit 
the support of more and more organizations for a trade-based approach to intel- 
lectual property. With every such enrollment, the business power behind the case 
for such an approach became harder and harder for governments to resist. 

Pfizer also managed to gain representation on a key committee, the Advisory 
Committee on Trade Negotiations, created in 1974 by the U.S. Congress under U.S. 



206 



trade law as an organization of numerous private-sector advisory committees 
with the Advisory Committee on Trade Negotiations at its apex. The purpose of 
this committee was to ensure a concordance between official U.S. trade objectives 
and the U.S. commercial sector. Pratt, with the assistance of other senior execu- 
tives within Pfizer, began to put himself forward within business circles as some- 
one who could develop U.S. business thinking about trade and economic policy. 
In 1979, Pratt became a member of the committee and in 1981 its chairman. During 
the 1980s, representatives from the most senior levels of big business within the 
United States were appointed by the president to serve on the committee. Out 
of this business crucible came the crucial strategic thinking on the trade-based 
approach to intellectual property. 

With Pratt at the helm and the CEOs of IBM and Du Pont Corporation serving on 
the committee, it began to develop a sweeping trade and investment agenda. John 
Opel, the then chairman of IBM, headed this task force. During Pratt's six years of 
chairmanship, the Advisory Committee on Trade Negotiations worked closely with 
William E. Brock III, the U.S. trade representative from 1981 to 1985, and with Clay- 
ton K. Yeutter, the U.S. trade representative from 1985 to 1989, helping to shape the 
services, investment, and intellectual property trade agenda of the United States. 

The committee's basic message to the U.S. government was that it should pull 
every lever at its disposal in order to obtain the correct result for the United States 
on intellectual property issues. U.S. executive directors of the International Mon- 
etary Fund and World Bank could ask about intellectual property when casting 
their votes on loans and access to bank facilities; U.S. aid and development agen- 
cies could use their funds to help spread the intellectual property gospel. Over 
time, the message was heard and acted upon. Provisions protecting intellectual 
property as an investment activity were automatically included in the Bilateral 
Investment Treaty program that the United States was engaged in with develop- 
ing countries in the 1980s. Means of influence of a personal and powerful kind 
also began to operate. George Shultz, the secretary of state, discussed the intel- 
lectual property issue with Prime Minister Lee Kuan Yew of Singapore, according 
to Jacques Gorlin in his 1985 analysis of the trade-based approach to intellectual 
property. President Reagan in his message to Congress of February 6, 1986 entitled 
"America's Agenda for the Future" proposed that a key item in that agenda should 
be greater protection for U.S. intellectual property abroad. This was consistent 
with the recommendation of the Advisory Committee on Trade Negotiations that 
the development of a U.S. strategy for intellectual property be endorsed by the 
president and the cabinet. The ground was being prepared for intellectual property 
to become the stuff of big-picture political dealing, and not just technical trade 
negotiation. The ground was being prepared for the TRIPS Agreement. 



207 



The detailed story of how TRIPS came to be part of the Final Act of the Uru- 
guay Round has been told elsewhere. 16 Key to the achievement of TRIPS was the 
formation of the Intellectual Property Committee. The Intellectual Property Com- 
mittee was an ad hoc coalition of thirteen major U.S. corporations; Bristol-Myers, 
DuPont, FMC Corporation, General Electric, General Motors, Hewlett-Packard, 
IBM, Johnson and Johnson, Merck, Monsanto, Pfizer, Rockwell International, and 
Warner Communications. It described itself as "dedicated to the negotiation of a 
comprehensive agreement on intellectual property in the current GATT round of 
multilateral trade negotiations." 17 

Europe was the key target for the committee. Once Europe was on board, Japan 
was likely to follow, or at least would not raise significant opposition. The sup- 
port of European and Japanese corporations was crucial. What followed was a 
consensus-building exercise carried out at the highest levels of senior corporate 
management. CEOs of U.S. companies belonging to the Intellectual Property Com- 
mittee would contact their counterparts in Europe and Japan and urge them to put 
pressure on their governments to support the inclusion of intellectual property 
in the Uruguay Round. Ultimately, the linkages that were created between U.S., 
European, and Japanese companies led to the joint release in 1988 of a suggested 
draft text of an agreement on intellectual property. 

TRIPS was a stunning negotiating victory that was made possible because a 
small group of individuals in the 1980s saw the possibilities of networked gover- 
nance, especially when those networks could capture and deploy a "big stick" in 
the form of U.S. trade threats. Within these intersecting TNC networks, there were 
pools of technical expertise upon which to draw for the purposes of producing 
a draft agreement, while other networks steered the draft through a multilateral 
trade negotiation involving more than one hundred states that lasted from 1986 to 
1993. Important to this achievement were a small number of business actors who 
created ever-widening circles of influence that enrolled more actors in networks 
that had TRIPS as their mission. 



POST-TRIPS 

The post-TRIPS era has seen a shift to bilateral trade agreements as the principal 
means for spreading intellectual property norms by means of the trade regime. 
These agreements contain standards that are either the same as or higher than 
those to be found in TRIPS. In the United States, TNCs continue to monitor these 
agreements through a U.S. trade representative advisory committee called IFAC-3 
(the Industry Functional Advisory Committee-3). IFAC-3 is made up of twenty 
members drawn from Industry Sector Advisory Committees and another twenty 



208 



Let's negotiate. I propose A, ) ( I propose Z, 

m r -J C 



D 



Q We ll, then, I propose B. } C \ propose Z. 
I In that case, I propose C. ) ( I propose Z. 

Okay, it's Z then. That was a^ 
challenging but fruitful 
negotiation. 



.vf — a 



Cartoon of a negotiation discussion {Diario La Republica, Lima, September 27, 2006, www.grain.org/photos). 



members drawn from private-sector areas who provide the committee with a large 
pool of expertise in intellectual property. The private-sector members are: the 
International Intellectual Property Alliance; The Gorlin Group; Pfizer, Inc.; the Law 
Offices of Hope H. Camp, representing Eli Lilly and Company; the Pharmaceutical 
Research and Manufacturers of America; Cowan, Leibowitz and Latman, PC; the 
Anheuser-Busch Companies, Inc.; Merck and Company, Inc.; the National Foreign 
Trade Council, Inc.; Powell, Goldstein, Frazer and Murphy, LLP, representing the 
Biotechnology Industry Organization; Time Warner Inc.; the International Anti- 
Counterfeiting Coalition; the Recording Industry Association of America; the Intel- 
lectual Property Owners Association; and Levi Strauss and Company. 

IFAC-3 works across all U.S. trade initiatives on intellectual property, whether 
bilateral, regional, or multilateral. It is thus able to coordinate at a technical 
level the work it does across these different forums, thereby ensuring that U.S. 
trade-negotiating initiatives push intellectual property standards in the direc- 
tion that U.S. industry would like. IFAC-3's technical expertise, as well as the 
expertise available to it from its members' corporate legal divisions, means that, 
for example, it can evaluate a country's intellectual property standards in detail 



209 



when that country seeks accession to the WTO, and it can provide detailed assess- 
ments of the standards that U.S. trade representative negotiators must bring home 
in a negotiation. 

The other striking feature of the post-TRIPS era has been the increasing 
involvement of civil-society NGOs in intellectual property policy. Today, there 
are thousands of NGOs working on issues such as access to medicines, access to 
knowledge, biopiracy, indigenous intellectual property rights, licensing, Internet 
governance, copyright-user rights, software freedom, and so on. The presence of 
NGOs working on a range of intellectual property issues provides scope for an alli- 
ance between developing states and NGOs. United minority factions can, under 
certain conditions, secure global regulatory change, the Declaration on the TRIPS 
Agreement and Public Health of 2001 being an example. Western NGOs are at their 
most effective when they can capture Western media interest and publicity. Often 
this requires a crisis of some kind. It has taken literally millions of deaths in Africa 
in order for the Western media to become interested in the links between pat- 
ents, price, and AIDS drugs, despite the fact that cartelism in the pharmaceutical 
industry has been a problem for the health-care system of developing countries 
for decades. 18 



THE FUTURE 

The possibility of securing change that benefits citizens in the context of intel- 
lectual property rights should not be overestimated. For the most part, intellectual 
property policy ends up mired in complex debates over rules and systems that only 
a few insiders really understand. Ignorant or corrupt politicians will nine times out 
of ten listen to the TNC representative who promises that bad things will happen 
to investment if policy X, which favors stronger intellectual property rights, is not 
followed. Of course, disagreements over the rules of intellectual property do break 
out among TNCs. A good example is the recent conflict over the rules that regu- 
late the use of continuations in the U.S. patent system. Continuations are applica- 
tions for inventions that have already been claimed in earlier applications. They 
are a way of keeping the application process going. Continuations are used most 
heavily in the biotechnology and chemical fields. The lack of restrictions on their 
use means that examiners have to devote time to reworking applications already 
examined, time that could be used to deal with new applications. 19 

As part of its attempt to reduce its volume of applications, the U.S. Patent and 
Trademark Office issued rules placing limits on the use of continuations. 20 This rule 
change was supported by a number of large companies, including Intel. Intel has 
a patent strategy based on filing for many patents and obtaining them as quickly 



as possible. Rules that allow an applicant to play for delay hold no advantage for 
it and in fact hurt its patent strategy, because continuations divert scarce exami- 
nation resources to applications with earlier priority dates. (Applications forming 
part of a continuation chain get the benefit of earlier priority dates.) Intel thus 
supported the patent office rule change. 21 Members of the biotechnology industry, 
on the other hand, are in the unfortunate position of not ever being sure what 
they have invented. The complexity of the biochemical world means that they are 
often left guessing, but they nevertheless file patents early and then use the con- 
tinuation process to refine their original application. 22 The biotech industry came 
out against the patent office's rule changes. GlaxoSmithKline was part of a group 
of plaintiffs that were successful in temporarily stopping the patent office from 
implementing the rules on November 1, 2007. 

The above example shows how a reform desired by one TNC player may be 
seen as damaging by another. Compromises and incremental rule changes are the 
usual results of this kind of conflict. But the divisive politics that are generated 
by specific rules of intellectual property should not be confused with the global 
politics that surrounds the institution of intellectual property. Here, TNCs remain 
united, because despite their different business models and strategic uses of intel- 
lectual property, they understand that the globalization of intellectual property 
is consistent with their long-term investment strategies. The source of their unity 
does not lie in any of the abstract philosophies of intellectual property, such as 
natural property rights, utilitarian-based cost-benefit approaches, or personality 
theories, because all of these would set limits on the corporate ownership of intel- 
lectual property. Rather, TNCs are unified by the belief they will all do better in 
a world where states and citizens have embraced an ideology that favors hyper- 
strong intellectual property rights because that ideology enables those TNCs to 
invest in turning knowledge from a public good into a private good and to set the 
terms of access to it. 

The claim being made here about the unity of TNCs should not be read as a 
claim about specific rules of intellectual property. TNCs will often be opponents in 
the context of a given set of international business rules because of the way those 
rules limit or increase their individual strategic opportunities. Other essays in this 
book have drawn attention to the divisions among TNCs in the context of software 
patents and the Broadcasting Treaty. The unity of TNCs does not operate at the 
level of rules, but rather at the level of deep ideology, because it is deep ideology 
that defines the evolutionary space in which some institutions flourish and oth- 
ers do not. Even if, for example, an Intel and a GlaxoSmithKline disagree about 
the reform of continuations in the context of the U.S. patent system, they remain 
unified on the need for a strong patent system to be spread to as many countries 



as possible and for that system to be made cheap and easy to use so that they can 
pursue their respective global patenting strategies. The inevitable disagreements 
among TNCs over the specifics of intellectual property rules should not blind us to 
their deeper-level ideological unity over the constraints to be placed on the evolu- 
tionary space of intellectual property institutions. 

A good example of the unified TNC ideology that surrounds the institution 
of intellectual property is the proposal by Japan, the European Community, the 
United States, and Switzerland for a new plurilateral Anti-Counterfeiting Trade 
Agreement. The idea behind the proposal is to forge new standards for the enforce- 
ment of intellectual property rights to combat global counterfeiting and piracy. All 
TNCs have been calling for some time for more to be done on the enforcement 
of intellectual property, calls that have been broadcast through state mouthpieces 
such as G8 gatherings. The same states and TNCs that pushed for TRIPS are now 
pushing a global enforcement agenda that will deeply affect the rights and privacy 
of citizens in developed and developing countries alike. The enforcement push is 
real, and it will profoundly affect policing resources in developing countries over 
the coming decades. The e-mail message below that circulated recently in South 
Africa might also be seen as a future leitmotif in which states have been persuaded 
to rearrange their criminal enforcement priorities: 

Please take note as this is scheduled for the weekend. . . . 

Please note that SAPS [the South African Police Service] are having roadblocks 
where they will check all CD Recordables in your car. If they find any, you get 
arrested and taken down to the police station so that all of them can be checked for 
pirated copies. 

The minimum fine is R3,ooo and you have to pay it immediately or they will 
detain you until you come up with the money. So if you have any pirated CDs please 
discard them and if you have empty recordable CDs or CDs that have information 
other than music and movies then keep them out of your car. 

Don't say you were not warned. 23 

The philosophy that unites TNCs in the institutional politics of intellectual 
property is a form of absolutism that elevates the rights of investors above all else. 
A world in which investor absolutism drives the making of intellectual property 
law is a world in which the welfare of all citizens will be diminished in vital areas 
such as education, health, and privacy. 

Developing countries and civil society can fight these TNC agendas, but in order 
to do so effectively, they have to form much closer political bonds than they have 
to date. While a few developing countries can resist developed-country intellectual 
property agendas, they are doing so in a nuanced way, picking and choosing their 



issues and interests. India, for example, in the Uruguay Round of trade negotia- 
tions, concentrated its resistance on the patents part of TRIPS and not on copy- 
right, even though the latter has just as many implications for access to knowledge. 
Vietnam, when it signed a bilateral trade treaty with the United States in July 
2000, accepted a chapter on intellectual property, but was successful in keeping out 
a provision that would have limited its capacity for the parallel importation and 
resale of goods without the consent of the patent holder. Small to medium-sized 
parties involved in a negotiation with the United States or the European Union on 
intellectual property issues tend to adopt a harm-minimization strategy, agreeing 
to intellectual property standards that they believe will not hurt them too much. 

There is, however, a collective cost for developing countries in adopting this 
harm-minimization approach. As they become integrated into the global archi- 
tecture of intellectual property by means of free-trade agreements, they create 
for themselves an institutional box beyond which it becomes more difficult to 
experiment with real alternatives to the existing system. Having entered a web of 
international obligations (TRIPS, the Patent Cooperation Treaty, the International 
Union for the Protection of New Varieties of Plants, and so on), a web dotted with 
enforcement spiders (for example, the WTO's dispute-resolution mechanism), they 
become more cautious. When confronted with a radical model of access to knowl- 
edge, the first reaction of developing-country officials will be to ask, "Is this con- 
sistent with our international obligations?" — the answer to which will keep many 
lawyers joyfully occupied for a long time. 

The need for a cooperative multilateral leadership on intellectual property by 
developing countries has become increasingly urgent. The monopoly control of the 
production of oseltamivir (Tamiflu) by Roche and the lack of global coordination by 
countries in dealing with the problem of inadequate stockpiles of oseltamivir, espe- 
cially in high-risk developing countries, shows that the patent system has become a 
factor in the management of pandemic risk. The World Health Organization (WHO) 
had recommended that countries stockpile oseltamivir. Yet because of the patent 
price, many countries could not afford to build a stockpile. As a study showed, this 
produced, in risk-management terms, the absurd situation of poor countries (e.g. 
Vietnam, Cambodia) that were also high risk in terms of the flu pandemic breaking 
out having the smallest stockpiles, while the lowest-risk countries (the United States 
and the European Union countries), which were also the richest, having the largest 
stockpiles. 24 Moreover, the possibility of generic production was severely hampered 
by the fact that Roche did not disclose the patent position of oseltamivir, leaving 
public-health officials uncertain about what they could do in terms of importing 
or manufacturing it. Similarly, the diffusion of climate-change technologies will be 
crucially affected by intellectual property rights over those technologies. 



213 



Clearly, developing countries should be collectively thinking about ways in 
which to manage intellectual property in the context of global risks such as pan- 
demics and climate change. Their current philosophy of mild cooperation in mul- 
tilateral forums while defecting to short-term gains in bilateral contexts is incon- 
sistent in the management of risk. More generally, if developing countries really 
wish to change the evolutionary space of intellectual property institutions so that 
real alternatives can flourish, they will have to design much better and stronger 
coalitions than they have to date. It is not good enough, for example, for develop- 
ing countries to unite in the WTO on a disclosure obligation with respect to the 
patenting of genetic resources and then for some of those developing countries to 
agree to free-trade agreements that do not support that WTO position. Obviously 
this kind of coalition breakdown simply creates incentives for the United States to 
continue to operate outside of multilateral forums. 

For civil-society groups working on intellectual property issues, the good news 
is that there are more groups engaged across a broader spectrum of issues than ever 
before. Among other things, this increases the possibilities of coalition building and, 
as the negotiations on the Doha Declaration on TRIPS and Public Health showed, 
a coalition of state and civil-society actors can be forged and wielded successfully. 
But just as civil-society actors can build coalitions and networks, so can the TNCs, 
with very different power outcomes. For civil-society actors, the prescription is to 
continue to invest in the creation of alternative models of knowledge creation and to 
float these in various national and international policy forums. Many of these will be 
ignored or will fail to gain wide support. But some will take hold, especially in times 
of crisis, such as a pandemic or the environmental crises that are predicted to accom- 
pany climate change, when state actors are desperately looking for solutions. For 
civil-society actors, floating new models for the growth and diffusion of knowledge, 
creating coalitions around those models, and acting in times of crisis are the basic 
elements of a strategy to change the evolutionary space of intellectual property. 



NOTES 



See the Trilateral Statistical Report, 2005 edition, p. 5 available on-line at http: //www. trilateral. 

net/statistics/tsr/2005.html (last accessed March 1, 2010). 

William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property 

Law (Cambridge, MA: Belknap Press of Harvard University Press, 2003]. 

Holger Gorg and Eric Albert Strobl, "Multinational Companies and Productivity Spillovers: A 

Meta Analysis," Economic Journal 111, no. 475 (2001): pp. 723-39, available on-line at http:// 

econpapers.repec.org/article/ecjeconjl/defaultlll.htm (last accessed April 10, 2009). 



214 



4 Janusz A. Ordover, "A Patent System for Both Diffusion and Exclusion," Journal of Economic 
Perspectives 5, no. l (1991): p. 43. 

5 Ronald H. Coase, "The Problem of Social Cost," Journal of Law and Economics 3, no. l (i960): 
pp. 1-23- 

6 Peter A. Hall and David Soskice, 'An Introduction to Varieties of Capitalism," in Peter A. Hall and 
David Soskice (eds.), Varieties of Capitalism (New York: Oxford University Press, 2001), pp. 1-68. 

7 Jeffrey D. Sachs, The End of Poverty (New York: Penguin Press, 2005), p. 75. 

8 My thanks go to Amy Kapczynski for suggesting a diagram of this kind. 

9 J. M. Roberts, Europe: 1880-1945 (London: Longman, 1967). 
io Ibid. 

11 This feature of capitalism was noted by observers at the time. See Rudolf Hilferding, Finance 
Capital: A Study of the Latest Phase of Capitalist Development, trans. Morris Watnick and Sam 
Gordon (Vienna, 1910; London: Routledge and Kegan Paul, 1981). 

12 Gary Herrigel, Industrial Constructions: The Sources of German Industrial Power (Cambridge: 
Cambridge University Press, 2000), p. 66. 

13 For a full description see Fritz Machlup and Edith Penrose, "The Patent Controversy in the 
Nineteenth Century," Journal of Economic History 10, no. l (1950): pp. 1-29. 

14 Abraham S. Greenberg, "The Lesson of the German-Owned U.S. Chemical Patents," Journal of 
the Patent Office Society 9, no. l (1926-27): pp. 19-35, 20. 

15 Originally posted on the Pfizer Web site, now posted at http://www.scripophily.net/ 
pfizerinc.html (last accessed April 10, 2009). 

16 Peter Drahos, with John Braithwaite, Information Feudalism: Who Owns the Knowledge Econ- 
omy? (London: Earthscan, 2002); Susan K. Sell, Private Power, Public Law: the Globalization of 
Intellectual Property Rights (Cambridge: Cambridge University Press, 2003). 

17 Intellectual Property Committee, Accomplishments and Current Activities of the Intellectual 
Property Committee (June 14, 1988). 

18 See G. Gereffi, The Pharmaceutical Industry and Dependency in the Third World (Princeton, 
NJ: Princeton University Press, 1983). 

19 See the U.S. Patent and Trademark Office's comments on the effect of continuations on its work- 
load at 71 Fed. Reg. 48-49 (January 3, 2006), available on-line at http://www.uspto.gov/web/ 
offices/pac/dapp/opla/comments/fpp_continuation/vanvoorhies.pdf (last accessed March l, 
2010). 

20 U.S. Patent and Trademark Office, "Changes to Practice for Continued Examination Filings, 
Patent Applications Containing Patentably Indistinct Claims, and Examination of Claims in 
Patent Applications (Claims and Continuations Final Rule)," 72 Fed. Reg. 46716 (August 21, 
2007), available on-line at http://www.uspto.gov/web/offices/pac/dapp/opla/presentation/ 
ccf rslides. html (last accessed April 11, 2009). 

21 See Intel's comments in support at http://www.uspto.gov/web/offices/pac/dapp/opla/ 
comments/fpp_continuation/continuation_comments.html (last accessed April 11, 2009). 

22 The comments of the Biotechnology Industry Organization in favor of continuations can be 
found at http://www.uspto.gov/web/offices/pac/dapp/opla/comments/fpp_continuation/ 
continuation_comments.html (last accessed April 11, 2009). 

23 Forwarded to the author by a criminologist based in South Africa on November 9, 2007. 

24 Buddhima Lokuge, Peter Drahos, and Warwick Neville, "Pandemics, Antiviral Stockpiles 
and Biosecurity in Australia: What about the Generic Option?" Medical Journal of Aus- 
tralia 184, no. l (2006): pp. 16-20, available on-line at http://www.mja.com.au/public/ 
issues/l84_0l_020l06/lokl0852_fm.pdf (last accessed April 11, 2009). 



215 



Welcome to the center.., the center for 

THE STUDY OF THE PUflUC DOMAIN, 

IQHI&M WE Aft DUimtm A iUWECr WW MAKES 57RWG 
HlN AN0 WOMEN TfifrtglC. QUft JUBJEtr (S NOT (o)l 





Extract from Keith Aoki, James Boyle, and Jennifer Jenkins, Bound by Law? (Tales from the Public Domain) 
(Durham, NC: Center for the Study of the Public Domain, 2006) (available at http://www.thepublicdomain. 
org/wp-content/uploads/20og/o4/bound-by- law-duke-edition.pdf). 



The Idea of Access to Knowledge 
and the Information Commons: 
Long-Term Trends and Basic Elements 



Yochai Benkler 



In the global networked information economy, the constituent elements of human 
welfare and development depend on information and knowledge. Well-designed 
health systems and practices, research on disease and health, and access to medical 
innovation and its products go directly to the ability of people to live a long and 
healthy life. So, too, agronomic and biological research and learning, which have 
contributed significantly to food productivity in some regions, have the poten- 
tial to reduce the prevalence of chronic malnutrition and hunger. Information and 
communications technology, books, educational materials, and learning practices 
promise improved literacy and educational attainment so that people around the 
world can live more engaged and fulfilling lives. Better access to distributed media 
hold out the promise of a more participatory public sphere, greater accountability 
of governments, and at least attenuation of the hold that authoritarian govern- 
ments have over what their citizens know and think. 

In the past few years, a diverse coalition of movements, political and economic 
actors, NGOs, scientists, and other academics have begun to coalesce around the 
idea, or the catch phrase, "access to knowledge" — A2K. The coalition is diverse. It 
includes activists concerned with access to AIDS treatments alongside European 
free-software developers concerned with software patents and digital rights man- 
agement (DRM). It includes large, developing nations such as Brazil and Argen- 
tina alongside large multinational corporations such as Cisco Systems and IBM. It 
includes scientists concerned with open-journal publications and NGOs concerned 
with information and communications technology. The basic claim of this unlikely 
coalition is that information policy, on a global scale, is of central importance to a 
wide range of human values. Economic concerns with innovation and growth, on 
the one hand, and the core political values of human development, justice, and 
freedom, on the other, are being affected by a set of policies historically thought 



217 



of in technical terms, but now increasingly seen and engaged for what they really 
are: policies that are of central importance to political economy and the moral 
quality of contemporary society. 

WHY NOW? 

The emergence of the access to knowledge movement is usefully understood in 
light of four long-term intellectual and material-historical trends. The first of these 
is the arc of the self-understanding of postcolonial societies, especially regarding 
strategies of economic development. In the 1950s and 1960s, the period of decol- 
onization led to the creation of a large number of countries, some through vio- 
lent liberation fights, others through the more or less voluntary acquiescence by 
colonial powers in the loss of empire. Throughout this period and increasingly in 
the 1960s and 1970s, the question of how these newly emerging societies were to 
manage their economies and societies was framed by the terms of self-determi- 
nation and independence that were so central to the struggle for liberation more 
generally. At a practical level, this led to the widespread adoption of autarky, or 
self-sufficiency — not only in the newly independent countries, but in older, but 
nonetheless poor countries, most prominently in Latin America. The adoption of 
economic self-sufficiency as a core mechanism of independence led to the pursuit 
of import substitution (replacing imports with domestically produced goods) and 
rapid industrialization as core goals, often implemented through national owner- 
ship and high tariffs to protect locally owned industries. Interlaced with the pur- 
suit of economic self-sufficiency was the ideological battle between capitalism and 
Communism. The latter's basic commitment to forced redistribution was, unsur- 
prisingly, congenial to at least some segments of the impoverished former colonies. 
In opposition, one also saw the rise of nationalism as an alternative totalizing ide- 
ology to Communism, as internal elites and popular movements battled in many of 
the still-unstable new countries. The consistent use of local battles as proxies for 
the Cold War did not help. 

By the middle to late 1980s, however, import substitution and self-sufficiency 
had come to be seen as failed economic strategies. Increasingly, and with greater 
speed after the collapse of the Soviet Union, integration into a liberal, global trad- 
ing system came to be seen as the sole or at least the dominant strategy available 
to countries, poor as well as rich, to promote growth and development. Dissenting 
voices continued to be heard, but very few governments followed them through- 
out the late 1980s and through the 1990s. 

The second, much longer-term trend underlying the A2K movement is the shift 
from industrial to information economies. The history of the Western shift from 



218 



agrarian to industrial, from industrial to service-based, and from service-based to 
information-based economies has been the subject of countless books and articles. 
The emphases differ, but the basic arc is not contested. This longer-term history 
has been telescoped in curtailed form in many of the newly independent states of 
the latter half of the twentieth century. In these countries, rapid industrialization 
was characterized by the same dislocation and misery that accompanied European 
industrialization in the nineteenth century. This industrialization came to fill the 
place of some of the production in the industrialized economies as these econo- 
mies moved toward information manipulation as their core activities. But industrial 
production under these terms was dependent upon the information-rich inputs — 
innovation, financial capital, and marketing — that dominate the wealthy econo- 
mies. The more recently emerging economies, as well as their poorer followers, are 
themselves trying to move into the later stages of capitalism at a more rapid pace. In 
a world trade system typified by industrialized peripheries and an information-rich 
core, the rules regulating the production and exchange of information, knowledge, 
and culture have therefore become a major battleground over competitiveness 
between the already-developed and the newly developing countries, or between 
the postindustrial and the newly industrialized economies. 

Access to information and knowledge as basic inputs into processes of learn- 
ing and innovation thus have become a central pathway to growth and develop- 
ment and ultimately to competition with the wealthiest economies. The newly 
emerging economies need access to the existing stocks of knowledge — such as 
the existing outputs of science and technological innovation— to speed up their 
ability to achieve something like parity in the global knowledge economy, while 
poorer developing economies and poorer regions in unevenly developing countries 
require that access as part of obtaining the preconditions to human development. 

This long term-trend toward industrialization and beyond it toward a global 
knowledge economy is therefore at the very root of what has become the A2K 
movement. It both necessitates the emergence of access to knowledge as a core 
element of concern with human development and gives it a focal point in those 
global institutions that have been the locus of the assertion and institutional- 
ization of control over knowledge flows: most prominently, the exclusive rights 
regimes usually collected under the umbrella term "intellectual property." These 
have become a central part of the basic legal underpinnings of wealth and poverty, 
productivity and development, in the contemporary global economy and have 
therefore unsurprisingly become the locus of contestation around which the A2K 
movement is coalescing. 

The first two long-term trends combined to underwrite the integration of 
the international intellectual property system into the global trade system. They 



THE INFORMATION COMMONS 219 



have also been the reason that the ways information, knowledge, and culture 
are produced and managed have become so central to questions of global jus- 
tice and development. They undergird the development of the idea of "intellec- 
tual property" and the rise of the Trade-Related Aspects of Intellectual Property 
Rights (TRIPS) Agreement. In brief, over the course of the late nineteenth cen- 
tury and throughout most of the twentieth, copyright and patents were treated, 
in the Berne and Paris treaties, in particular, as distinct regimes, and their inter- 
national enforcement was largely a system of reciprocity and mutual recognition 
of national policies. These agreements were largely peripheral to the international 
trade system and had practically no teeth. In the 1970s, some of the countries 
that were focused on import substitution and the development of local industries 
passed laws, such as India's 1970 Patent Act, that withdrew patent protection in 
core industries, such as pharmaceuticals, allowing their indigenous industries to 
displace imports. As Peter Drahos and John Braithwaite have documented, in the 
1980s and until the mid-1990s, the core industries — orchestrated primarily by the 
pharmaceutical industry, but joined by other players such as the Hollywood stu- 
dios and proprietary software companies — shifted the global regulation of infor- 
mation and innovation away from the global copyright and patent regimes cen- 
tered on the World Intellectual Property Organization (WIPO), and toward the 
trade regime. 1 

This push was concluded with the entry of TRIPS into force in 1995 as part of 
the Uruguay Round of General Agreement on Tariffs and Trade (GATT) that created 
the WTO. In the decade that has followed, this push has been complemented by 
the internal drive within WIPO to save itself from obsolescence by offering ser- 
vices to those actors who successfully pushed the TRIPS Agreement. Beginning in 
the mid-1990s, WIPO became a forum for pushing new, extensive intellectual prop- 
erty rights and for offering technical assistance that would speed up adoption of 
highly protective property rights regimes throughout the world. During this period 
too, the TRIPS agreement became a baseline of minimal protection, rather than a 
standard, while the coalition that pushed for its initial adoption further pushed 
both through WIPO and through U.S. bilateral free-trade agreements for the adop- 
tion of the even more restrictive "TRIPS-plus" protections. This steady trajectory 
is a product of the combination of the increasing importance of information to 
economic growth as well as to capturing value from economic production and of 
the wide perception that integration into the global trade regime is the only option 
for nations wishing to avoid stagnation and underdevelopment. 

The most important institutional and intellectual moves in this period were 
the creation of the idea of "intellectual property" itself and its inclusion in the 
trade regime, the weaving of diverse types of mechanisms to increase the degree 



of exclusivity everywhere, and the abstraction of the protected category. The first 
of these equated innovation with strong intellectual property rights and wealth 
with the export of goods that were intellectual property. Providing industries 
that depend on exclusivity with a stronger enforcement mechanism globally thus 
became a core trade goal. The creation of the idea of intellectual property and its 
inclusion in the trade regime also shifted the institutional base of the relevant 
national negotiators from more locally protective and development-sensitive gov- 
ernment ministries such as those of culture or education to ministries more ori- 
ented toward global trade and industry. The negotiating dynamics of the terms of 
trade therefore were easier to tilt in favor of the intellectual property exporters, in 
exchange for concessions, real or imagined, on agriculture, textiles, and so on. 

The second move consisted of weaving unilateral, bilateral, and multilateral 
mechanisms together to form a net that could be used to ratchet up the level of 
protection everywhere. The industries pushing for stronger exclusive rights 
regimes were able, over the course of this period, to identify various weak spots, 
in terms of political economy, where it was possible to achieve higher protection. 
It might be the U.S. trade representative or the European Commission; it might be 
WIPO or the WTO; or it might be a bilateral trade agreement with a country that 
had much to gain in areas other than the information economy by agreeing to a 
particularly broad set of protections. In each case, victory in one arena was avail- 
able as a baseline for renegotiating the terms in other arenas and for generalizing 
the practice globally. This playable international system assures that there is no 
clear bottleneck to ratcheting up protection while at the same time placing inter- 
national harmonization requirements as a backstop against the "loss" of protec- 
tions already agreed to in some other forum. 

The third major move was an intellectual one of generalization or abstraction: 
The various different industries such as Hollywood, pharmaceuticals, and semi- 
conductors came to be seen not as discrete industries with special issues, but as 
instances of "the intellectual property industries." This, in turn, pushed govern- 
ments to move from seeing intellectual property policy as involving a series of 
discrete policy issues that represented industry-specific tradeoffs to viewing these 
problems as a broad project of setting industrial policy in a global information 
economy, one in which they were information exporters. And finally, this allowed 
the United States, the European Union, and Japan to move from seeing each other 
purely as competitors to seeing themselves as having a common interest as infor- 
mation exporters, forming a formidable interest bloc in the institutions of the 
world trade system. 

However, the rise of the information economy has also played a role in fos- 
tering the counterforce that has today resulted in the emergence of the access to 



THE INFORMATION COMMONS 



knowledge movement. It combined with two further long-term trends to form a 
response to the rise of the global trade and intellectual property system. 

The third long-term trend that has helped give rise to the A2K movement is 
the shift from mass-mediated culture and monopoly telecommunications systems 
to the networked information society. Mass media initially emerged with the rise 
of electrically driven presses and automated typesetting and newspaper folding, 
complemented by the rise of professionalized journalism and telegraph-based 
news services around the middle of the nineteenth century. As rail travel and 
steam-based trade increased the size of the relevant (that is, interdependent) soci- 
eties and economies over the course of the nineteenth century, high-cost commu- 
nications facilities led to the organization of communications and the public sphere 
around large aggregations of capital. First in the telegraph, then in telephones, 
long-distance communications were either monopolized by market players, as in 
the United States, or nationalized, as in most other countries. In either case, only 
large organizations with the capacity to amass capital were able to build systems. 
As radio and later television joined the press, the capital costs of producing and 
disseminating information, knowledge, and culture to the relevant communities 
continued to be high. These formed the basis for the relatively concentrated media 
environment typical of most countries in the world, whether the concentration 
was market-based or state owned. 

The period beginning in the late 1980s saw rapid changes in the communications 
and media environment. Initially, we saw the introduction of competition from new, 
but still large-scale players introducing a more competitive market into telecommu- 
nications, both wired and wireless, and into the cultural industries and media. 

More dramatically, beginning in the mid-1990s, we saw the rise of Internet- 
based communications and the emergence of a networked information society and 
economy based on the radical decentralization of information production. This 
trend created new opportunities and new social forces that did not exist before or 
at least that would not have been aligned before. Firms that dedicated themselves 
to providing communications and computation found themselves aligned with 
software programmers who wanted to participate in the free software movement; 
citizen journalists saw themselves aligned with Wikipedia editors; NGOs found 
themselves more effective than they were before and aligned with scientists, who 
found that through networked communication they could sequence and annotate 
the human genome faster than their commercial, proprietary competitors. The rise 
of decentralized peer production and of nonmarket production in general and the 
increased efficacy and practices of those who participated in the networked infor- 
mation economy provided some of the intellectual framing, as well as the surpris- 
ing alliances, that seem to characterize the A2K movement. 



The fourth and final long-term trend that has propelled the A2K movement is 
the shift in the global ideological framing of questions of justice and human free- 
dom. As the failures and excesses of both Communism and autarkic statism as via- 
ble and attractive alternatives to capitalist democracies came to be too painful to 
ignore, so, too, did the limitations of simple realism in the international relations 
sense, in which nation-states interact solely within a framework of machtpolitik. 
Instead, we have seen the gradual rise of human rights, human dignity, and partici- 
patory politics as the more or less universal ideals toward which most societies in 
the world aspire — if not in practice, in principle. 

There is, obviously, no simple, linear progression toward the adoption of human 
rights as a framing ideal. To see this, one need look no further than the rise of fun- 
damentalism as a rejection of the modern, as one sees in contemporary U.S. politics 
or in the Muslim world, or as a challenge to the liberal demand of treating others 
with equal dignity, as arguably was demonstrated by the late 1990s rise of Hindu 
nationalism. But the majority of countries and the majority of discourse focused 
on engagement in the global system, rather than disengagement, has had to accept 
some form of a human rights framework. In particular, in the last decade and a half, 
we have seen the rise of the idea, associated primarily with Amartya Sen, of devel- 
opment as freedom, which integrates in important and interesting ways both the 
civil-political and social-economic rights of the international human rights system. 

These four trends — the rise of a globalized, liberal trading system, the rise of 
the information economy, the subsequent genesis of a networked information soci- 
ety in which information, knowledge, and culture have become central to human 
welfare and economic growth and in which the production of all three increasingly 
has become Internet based, radically decentralized, the domain of nonmarket or 
small, independent actors, and finally, the rise of human rights in general as an 
ideal and the idea of development as freedom — these undergird the rise of the 
A2K movement. 

In the more immediate history since the mid-1990s, the convergence of all these 
trends has manifested itself in the convergence of several initially independent and 
disjointed efforts. The first was the access-to-medicines movement, which during 
the 1990s received a major boost in visibility through its relation to the battles 
over research-and-development priorities triggered by the HIV/AIDS pandemic. 
To some extent, this was due to the sheer immensity of the devastation wrought 
by the pandemic. But it was also likely due to the fact that HIV/AIDS is a disease 
that strikes not only at the poor of Africa, but also at the very heart of the cultural 
elites of the United States and Europe. As combination therapies that could halt 
the progress of the HIV virus were developed in the late 1990s, the stark disparity 
between outcomes for the wealthy and the poor became harder to ignore. 



THE INFORMATION COMMONS 223 



During the same period, but independently, the explosive growth of Internet 
usage spawned two movements that were initially only very loosely linked. These 
were the movements for Internet freedom, anchored in concerns over encryp- 
tion, privacy, and antipornography regulation, on the one hand, which domi- 
nated the concerns of the computer geeks, and the information commons move- 
ment, populated initially by librarians, academics, and different groups of geeks, 
which responded to efforts by Hollywood and the recording industry to rein in the 
Internet and to stem what these corporate entities saw as a threat to their entire 
production model, but also as an opportunity to turn the Internet into a global 
pay-for-play jukebox, by rapidly expanding copyright and a variety of copy- 
right-reinforcing mechanisms. In both cases, there were relatively few companies 
systematically involved in resisting the expansion of exclusivity or censorship, 
although opportunistically, the telecommunications carriers cooperated with these 
civil-society efforts in order to avoid regulatory burdens aimed at forcing them 
to enforce the various content restrictions sought. By the late 1990s, the free and 
open-source software development communities began to grow from the engaged 
technical communities they had been before into politically mobilized groups. The 
open-source community focused on expanding the acceptability of this approach 
among businesses and forged the affinity alliances with business that are becom- 
ing important in the present coalition, while the free-software movement focused 
on the political mobilization of participants and on affinity alliances with the 
global left. Together, these have become genuine grassroots movements around 
questions of DRM and software patents, in particular, with hundreds of thousands 
of participants around the world, and have played significant roles in policy mak- 
ing in the European Union concerning software patents, in the United States con- 
cerning trusted systems, and in Brazil, at least, concerning development initiatives. 

As the 1990s came to a close, a completely different set of actors began to 
organize around the threats of enclosure, or the expansion of copyright and other 
exclusive rights to ever-broader domains and uses of information and knowl- 
edge. Scientists, on two fronts, began to see intellectual property as a hindrance, 
rather than a help. On one very publicly visible front, the Human Genome Proj- 
ect captured the imagination, because the prospect of patenting human genes 
led to extensive public debate. But while the public at large was concerned with 
metaphysical questions about owning human beings, in some sense, scientists 
were mostly worried that they would be shut out of the ability to do research. 
A major international effort incorporating academic scientists, government and 
nonprofit funders, and even some pharmaceutical companies that were worried 
about upstream patents became engaged in an unprecedented effort to sequence 
as many genes as possible, as quickly as possible, and to publish them freely as 



224 




DefectiveByDesign.org is a broad-based, 
antidigital-rights-management (DRM) campaign 
that targets media, manufacturers, and distributors 
who facilitate DRM. The campaign seeks to 
discourage companies from bringing DRM-enabled 
products to market, and to identify "defective" 
products for consumers (Andrew Becherer, license: 
http://creativecommons.0rg/licenses/by/3.o/). 



quickly as possible to preempt their appropriation by Celera Genomics and other 
private, proprietary efforts to sequence all or parts of the human genome. The 
result was a mobilized segment of the scientific community. 

Over the same period, many of the same academics saw the rising costs of aca- 
demic journals, primarily scientific journals, and realized that although they were 
writing the papers and providing peer review of them (typically for free), they 
were required to pay high access fees to read those same materials because of the 
highly concentrated nature of the journal-publishing industry. Scientists began to 
adopt a wide range of open publishing efforts, beginning withArXiv.org in physics, 
e-Biomed in science, and later, the Public Library of Science, the Budapest Open 
Access Initiative, and self-archiving. Parallel and independent of these were efforts 
by librarians and archivists to deal with questions of digital archiving, obtaining and 
structuring materials that could be archived and presenting them on the Internet. 

On the infrastructure side, two distinct movements were present. The first was 
the more traditional, development-focused work on information and communi- 
cations technologies for development. Here, traditional aid agencies and develop- 
ment economists, often in response to the global digital divide, were concerned with 
computers, kiosks, and network connections. At the same time, beginning in the 



THE INFORMATION COMMONS 



225 



late 1990s and picking up in the first half of the 2000s, a movement around open- 
spectrum policy developed to question the whole approach of spectrum manage- 
ment as property. Wireless communications long had been regulated as a form of 
public property, and as privatization took hold across many domains, the wireless 
spectrum, too, was subject to a sustained critique by economists, so that by the mid- 
1990s its conversion to a private property regime was widely accepted. By that point, 
however, the model of regulating wireless communications via an understanding of 
"spectrum" as a "resource" that needs to be managed by either the state or a com- 
pany had become obsolete. Instead, it had become feasible to permit the deployment 
of wireless equipment that would enable users to own their own network connec- 
tions and to circumvent the bottleneck that traditional providers of last-mile Internet 
connectivity held, and continue to hold, over Internet access. Originating mostly in 
the United States and receiving a major global push with the adoption of Wi-Fi, more 
municipalities, companies, and, increasingly, nations and aid agencies are working on 
solutions to provide decentralized, ubiquitous Internet broadband access over wire- 
less networks using off-the-shelf equipment that uses a spectrum commons, which 
no one owns, rather than following the expensive traditional path of licensing or its 
very close twin, spectrum auctions. 

Since 2004, these diverse groups of actors and movements have begun to find 
common cause, to see common themes, and to coalesce around a set of ideas, orga- 
nizations, and conferences to form what appears increasingly like a global social 
movement. They interact with the growing normalization of cooperative, nonmar- 
ket social practices such as Wikipedia, with the increasing political and practical 
consciousness that finds the Creative Commons initiative as its focal point, with 
the fact that many more commercial entities are beginning to find ways to interact 
productively and profitably with commons-based production, and with the newly 
invigorated efforts, of developing nations, headed most prominently by Brazil, to 
shift the agenda of international exclusive rights regimes away from ever-increasing 
harmonized protection toward a more context-dependent and development-oriented 
policy. A major catalyst in the mutual recognition of these diverse groups and actors 
has been a series of conferences organized by the Trans Atlantic Consumer Dialogue 
(TACD), where these various actors have come to meet, talk, and understand their 
mutual agenda. 2 

A2K, COOPERATION, AND THE INFORMATION COMMONS 

The ideas of the information commons and the use of networked cooperation have 
been central to discussions within and about the emergence of the A2K move- 
ment. In the remainder of this essay, I will explore why this might be. My claim is 



226 



that these ideas subvert the traditional left-right divide, form the foundation for 
some of the most interesting and unusual alliances, and provide the platform on 
which political and economic interests meet around a common institutional and 
organizational agenda. 

Recall that the networked information economy is built on an inversion of the 
capital structure of the production of information, knowledge, and culture. For the 
first time since the Industrial Revolution, at least, the most important inputs of core 
economic activities are broadly distributed throughout the populations of the most 
advanced economies and in significant segments of emerging economies. These 
inputs include computation, communications, and storage capacity and human 
intuition, creativity, and wisdom, which are personal, nonfungible, and uniquely 
held by individuals. General Motors did not have to worry about competition from 
amateurs getting together on a weekend, because the cost of an assembly line was 
too high for their efforts to matter in the market. The same is not true of Micro- 
soft or Britannica. The widespread distribution of material and human resources 
has meant that behaviors that have always been central to human sociality — 
from real friendship to simple decency toward a stranger in a chance encounter- 
have moved from being socially important, but economically peripheral, to being 
centrally effective in the economy as a modality of production. 

The already-existing fact that creativity and wisdom are distinctly individual 
and human, together with the new and radical decentralization of physical capital, 
has located the practical capacity to act effectively in the hands of individuals and 
of loosely coupled cooperative groups in society. In acts ranging from individual 
authorship of Web sites or blogs, to the small-group authorship of blogs, to mas- 
sive collaborative efforts such as Wikipedia or the Linux kernel, production based 
on social motivations and signals, rather than on price signals or hierarchical com- 
mands, engaged in as both individual and peer production, has become a signifi- 
cant force in contemporary economies, societies, and cultures. 

The importance of the information commons, in particular, is anchored in the 
nature of the existing universe of information, knowledge, and culture. In order 
for a person to act effectively, both authority (under whatever system of prescrip- 
tion is applicable to the action) and the practical capacity to act have to be located 
in the same place. Effective, large-scale patterns of human action will emerge only 
through the actions of those actors who have both the practical capacity and the 
authority to act. And it is here that the information commons enters. Both indi- 
viduals, who are now made more capable and potentially effective by the decen- 
tralization of material capital, and the newly feasible networks of cooperation that 
are so central to this new, effective agency need a universe of existing informa- 
tion resources on which they have the authority to act. Exclusive rights, such as 



THE INFORMATION COMMONS 227 



copyrights or patents, are designed to remove the general authority to act on a 
given information or cultural resource and instead locate the authority to per- 
mit learning and to use a given information "hit" in the hands of a given agent. 
Permissions from that agent then form the basis for a particular kind of market 
in permissions to use the information resource. But information is a public good, 
in the economic sense. It is what economists call "nonrivalrous" — it can be con- 
sumed by one consumer without preventing simultaneous consumption by others. 
Its marginal cost is zero. Any market that imposes a positive price on informa- 
tion therefore leads to underutilization of the information. And in a setting where 
information is itself used as a productive input, not only as what is consumed, this 
underutilization is not merely what is known as a "deadweight loss" in terms of 
efficiency (those who would benefit from it at a price less than it would cost to 
deliver to them do not get it), but actually inhibits innovation and new creativity. 

All this is well known, but the critical point here is that enclosure of informa- 
tion through exclusive rights regimes locates the authority to act with and upon 
covered information and culture with the rights holder, rather than with whoever 
has the practical capacity and insight to do something useful and interesting with 
the information — even if that person is entirely willing to pay the actual social 
cost of using the information, that is, their own time and attention in using it. 
Exclusive rights regimes pose a particular and heightened threat to innovation and 
creativity as noncommercial and nonproprietary production increases in general, 
and as cooperative peer production increases in particular. Peer production thrives 
on combining a wide range of contributions from diversely motivated individu- 
als scattered across the globe. If each participant were required to pay a license 
fee, even one that was "reasonable" by the lights of a commercial producer, even 
one low enough to be reasonable to a highly committed amateur, still there would 
be a large number of smaller-scale contributors whose contributions would be 
critical to sustaining the cooperative project as a whole, but who would be priced 
out of the market. The denial of a general authority to learn from and to be cre- 
ative with the existing universe of information, treated as a commons, therefore 
inhibits creativity and innovation when carried out in peer-production endeav- 
ors and limits the human agency, the freedom, that such creativity both expresses 
and enables. 

The productivity of the commons and counterproductive effects of property- 
mimicking regulations such as exclusive rights regimes, the increasing recognition 
of the value and importance of nonmarket action generally and of cooperation, in 
particular, by commercial actors such as IBM, which has developed a substantial 
"Linux services" business in collaboration with the free and open-source software 
development community, by civil-society organizations, and by loose alliances of 



228 



individuals practicing these forms of social production has set the stage for a new 
and interesting set of intellectual shifts. 

Because of its capital cost structure, the industrial economy promoted a binary 
view of effective action focused on the two mechanisms available for raising suf- 
ficient capital to be effective: the market and the state. Because effective action 
by a significant number of people required sustained commitments of time and 
focus, often in conjunction with large-scale capital investment, groups that were 
formed to undertake such action were seen as stable, and the binary opposition 
of solidarity and individualism likewise was seen as stable. The state of organiza- 
tion theory was such that hierarchy in the early twentieth century was seen as 
the epitome of effectiveness, whether it came in the form of Taylorism, Fordism, 
Weberian bureaucracy, New Deal progressivism, or Communist Party discipline. 

Commons-based information production and peer production destabilize these 
binaries. These new forms of production are based neither in the state nor in the 
market. The most prominent among them are either structurally participatory and 
self-governing, like Wikipedia, or at least drastically more dialogic and persuasion- 
based than earlier organizational models, even when they are not formally partici- 
patory, like the Linux kernel development community. In this context, much looser 
associations can retain efficacy, rendering the individualism/solidarity choice less 
stark and stable. These new forms of production enable and thrive on flat organi- 
zational structures with large amounts of authority for individuals to self-assign 
tasks, sense the environment for opportunities for action, act, communicate with 
others, and repeat. This is precisely what makes these approaches valuable — their 
advantage as large-scale systems of learning through initiative, trial, error, com- 
munication, and adaptation. They support — indeed, they require — a more coop- 
erative view of human action, without also requiring a strong commitment to a 
view that privileges solidarity over individualism. 

The destabilization of these industrially derived intellectual binaries makes 
networked cooperation using commons-based strategies for resource manage- 
ment an attractive modality of production within the framework of the unusually 
broad range of views that characterized the political-theoretical map of the nine- 
teenth and twentieth centuries. Almost the entire range of liberal traditions, from 
laissez-faire to progressive liberalism or social democracy, can find information- 
commons-based cooperation attractive. The left, too, can find in these practices 
one way out of the dead end that state socialism proved to be. Libertarianism, 
of both right-wing, market-oriented, and left-wing, anarchistic varieties, like- 
wise finds attractive narratives to tell about cooperation in the networked com- 
mons. Adherents to this broad range of views can then, as a practical matter, ally 
with market actors who eschew political views altogether and who are focused on 



THE INFORMATION COMMONS 229 



survival, innovation, and growth in an increasingly competitive global economy 
where learning and adaptation are an imperative. Needless to say, some of this 
congruence is temporary and ad hoc. Some, however, represents a real change in 
conditions and intellectual alignments. 

Take, for example, a question such as the European consideration of software 
patents, opposed widely because of the possibilities of strategic holdup — the con- 
cern that patent owners would temporarily hide their rights, but then exploit the 
interdependencies of software and standards to demand excessively high pay- 
ments once their software became integrated into a standard— and for its effects 
on free software development. At a basic strategic level, this opposition aligns 
companies that, rather than selling software as "goods," sell software services and 
computerized enterprise solutions (these businesses account for over three-quar- 
ters of the software business; IBM is the leading example) with free and open- 
source software developers and activists concerned with constraining the scope of 
expansion of patents or exclusive rights regimes in general. They can all converge 
around the basic critique of intellectual property or exclusive rights regimes in 
terms of efficiency and innovation policy. In this case, because the software mar- 
ket is so heavily pervaded by nonexclusion-based business models and because 
patents have been applied so poorly in the United States, the minimal, functional 
case forms a foundation for a broad, tactical alliance, and when enacted at a higher 
theoretical framing as being about "intellectual property" versus "commons-based 
strategies," as it often is, this tactical alliance can be part of a broader strategic 
alliance between firms in the information technologies sector and the A2K move- 
ment. This tactical and strategic alliance is the least interesting theoretically, but is 
of enormous importance politically. 

Moving one level deeper, free and open-source software (the political and apoliti- 
cal names for the phenomenon, respectively) and commons-based peer production 
can be framed as attractive to libertarians, liberals, the postsocialist left, and anar- 
chists, though in each case for different reasons and viewed through different lenses. 

Laissez -faire liberals and libertarians can see in open-source software develop- 
ment an instance of people acting according to their own preferences, unforced, 
to produce together. They need some more or less fancy story about motivation 
and why people would do this. They need some clear specification of how people 
ultimately make money. These tasks have been taken on by economists studying 
this problem. But the basic framing is congenial to market-centric liberalism and 
property-based libertarianism: People are using their propertylike rights — either 
copyrights or simply their right to be free in their bodies to work on whatever 
project they choose — to adopt business models and strategies, often implemented 
through licenses, with firms that engage in this activity as a strategic option, 



230 



producing in ways that they deem useful. When the state comes and tries to 
extend patent rights that cover the object of action, particularly given the back- 
ground understanding of information as a public good in the strict economic sense, 
patent law comes to be framed for laissez-faire liberals and libertarians as a regula- 
tory intervention. 

A central claim of the information-commons movement has been precisely to 
emphasize the regulatory nature of exclusive rights regimes, resisting and under- 
mining the move to unthinking application of the "intellectual property" label. In 
other words, the state has a model of how software development goes (or encyclo- 
pedia writing, or video entertainment, in the case of copyright and paracopyright), 
and it is intervening in what seems to be a perfectly functional innovation system, 
imposing new rules that are upsetting a whole set of freely chosen business prac- 
tices already in place. Needless to say, this is not the only way to view what is 
happening, but it is a sufficiently plausible characterization that many libertarians 
and laissez-faire liberals in fact understand what is happening in these terms. The 
rhetorical foundation of the "open-source software" movement was precisely to 
frame the practice in these terms of free choice, innovation, and business benefits. 

The left sees in the information commons very different things. Here they see 
proof that when people own the means of production, they can cooperate outside 
of the market (both in the sense that the outputs need not be sold in the mar- 
ket and in the sense that labor is not commodified), without reliance on property 
as the organizing principle to achieve productive goals. It is proof that there is 
no one right path of capitalism. Here, even more importantly, is a vector through 
which the existing distribution of power can be resisted: power not only in the 
political sense, but in the economic sense and the cultural sense, as well. This is 
where the commitment to free software offers an important rhetorical marker of 
a basic underlying observation. The central distinctive commitment of the left has 
been resistance to the dehumanizing application of power by economic produc- 
tion systems and with it by culture and society, religion and the family being the 
two main loci of illegitimate power and coercion. The necessity of sustaining eco- 
nomic production and its former dependence on large-scale capital aggregation led 
the left to give the state an enormously powerful and ultimately corrosive role 
in achieving freedom from this power. But in peer production, we are seeing an 
avenue of resistance to the hierarchical exercise of economic power that does not 
flow through the state. More Kropotkin than Lenin, this source of power in the 
hands of people networked together is, I think, the single most attractive feature 
of the information commons to the left. There are, of course, some on the left who 
will continue to see the distribution of material goods as central and who will be 
skeptical of the importance of information as the locus of egalitarian production. 



THE INFORMATION COMMONS 231 



The debate here, from the perspective of the A2K movement, will be over the rela- 
tive centrality of the distribution of dynamic, productive capabilities for learning, 
growth, and effective production in the domains of information and knowledge as 
engines of justice over time in the distribution of social and economic power and 
material goods. 

For liberals, free software and open-source software, the commons, and peer 
production offer ways of deepening individual freedom, improving democratic 
participation and the accountability of both government and corporate power, 
providing new avenues for human community and sociality without imposing the 
constraints of conservative social forms, and offering a basis for a more participa- 
tory public culture — all this without the need to resort to rejection of the mar- 
ket qua market and without subjecting the individual to collective or solidaristic 
claims, at least not to claims that are not freely chosen, negotiated, taken up, and 
capable of being renounced when the individual desires to do so. 

Needless to say, if cooperation in the information commons were in fact all 
these things to all people in all these ideological camps, we would have indeed 
come to a certain kind of end of history. There are, of course, market liberals and 
libertarians who see peer production and the commons as the left does and either 
disbelieve it or resist it on principle, or both at different times. There are those on 
the left who emphasize the disparities of power between those few million who are 
newly empowered, perhaps, and the billions for whom things have not changed at 
all. And there is a strong, central strand in liberalism that sees the role of an effec- 
tive, constitutionally limited, deliberatively legitimate state to be central both to 
liberal thought and to individual freedom. 

All these views — both those that embrace cooperation in the commons and 
those that express skepticism about it — are correct. All are incomplete. That is why 
this moment calls for a theoretical engagement with the possibility of free, nonhi- 
erarchical, flow-based, and networked, rather than stable-structured and institu- 
tionalized social forms. The A2K movement is at the heart of dealing with the main 
limitation of commons-based and peer production from both the left and liberal 
perspectives — its application to justice, both local and global. The freedom to act, 
alone and in loose cooperation with others, in effective forms free of hierarchical 
power depends on the distribution of basic capabilities and authority to engage 
in open and collaborative modalities of production. The A2K movement can and 
must play a political and social role in assuring the global distribution of access to 
the basic conditions — both material and institutional — that enable the decentral- 
ization of practically effective human agency and sociality. Whether and to what 
degree the contemporary partial intellectual alliance can be sustained between the 
left and left liberals, on the one hand, and market liberals and some libertarians, 



232 



on the other, depends upon how power in the market and power in the state can 
be reinterpreted, reconceived, and restructured as a matter of practical programs. 

Freedom, justice, and efficacy are the core interfaces for the realigned map of 
political theory that we can draw and that we need to draw if we are to change the 
power alliances that have for so long disabled a more egalitarian global distribu- 
tion of capabilities and opportunities. The core interface of the A2K movement 
with libertarianism is in the area of individual freedom. The centrality of practical 
freedom to explore, experiment, and adapt, and hence to learn and innovate, con- 
verts freedom into efficacy and becomes the core interface with market liberalism. 
Freedom and efficacy, then, will be the interface with both liberalisms, market and 
social. Justice and freedom, in the sense of the dissipation of structured, stable 
hierarchical power, will be the interface between liberalism and the left. And all 
three — freedom, justice, and efficacy — will be the interfaces with the social, prag- 
matic, liberalism that has occupied the center in the United States, Europe, and 
gradually, since the end of World War II, much of the rest of the world. 

At a programmatic level, the core foci of the A2K movement lend themselves 
well to characterization through these conceptual interfaces. The policy goals of 
the movement can be, and indeed are, couched in terms of justice, freedom, and 
efficacy. The mainstream understanding of the economics of information and inno- 
vation lends itself to complementary, rather than competing rhetorics of access. 
The public-goods nature of information in the technical economic sense supports 
limiting the scope and reach of patents and copyrights. The character of informa- 
tion as both the input and the output of its own productive process provides the 
foundation for an argument about diverse rules for diverse economies, industries, 
and activities, and all these can be made in terms of efficacy, or in this case, growth 
and innovation, to push back on the rhetoric of harmonization that has been so 
central to the strategy of ratcheting up exclusive rights around the world. At the 
same time, the centrality of individual freedom and social cooperation to the effi- 
cacy sought — learning and innovation — aligns the programmatic concerns for a 
more expansive commons and more limited exclusive rights with the interfaces to 
liberals, social democrats, and the left. One reason, perhaps, that the movement 
was able to coalesce as it did around patents and copyrights was that this program- 
matic focus was so easily transferred across theoretical divides. 

But access to the information commons in the abstract is insufficient. As I dis- 
cussed above, freedom, justice, and innovation all require effective agency, not 
merely formal permission to act. And effective agency in the domains of infor- 
mation and knowledge production requires access to material means, as well as 
to a knowledge commons — not the same access as was required in the industrial 
age, but access to a minimal set of material capabilities and educational faculties 



THE INFORMATION COMMONS 233 



nonetheless. Here, the alliances must come under some pressure, particularly in 
the interface with libertarians. Still, the centrality of innovation and information 
production, as well as the widespread recognition among market liberals that inte- 
gration into the global economy requires investments in infrastructure, suggest 
that at least some of the congruence can be kept as we move to infrastructure. 

On spectrum policy, in particular, the drive to a spectrum commons is wholly 
couched in the United States in terms of efficiency and growth, and, if success- 
ful, will create a large market pull for the creation of devices capable of creating 
an infrastructure merely by their local deployment by users. This is one path that 
is both radical in its implications — enabling the development of a free and open 
infrastructure owned by its users — and capable of being couched along any of the 
conceptual interfaces. The drive to deployment of broadband capabilities, neu- 
tral or open-access telecommunications networks, and open personal computers 
and mobile platforms all have that similar feature: They are debated in the United 
States and Europe in terms of innovation and growth — that is, of efficacy — but 
have obvious and direct effects for, and framings in, freedom and justice. 

In the debates over patents in medicines, framing a congruent agenda and 
understanding is a bit harder. The language of justice is most easily available and 
has been dominant. But a particular historical contingency has made some alli- 
ances at least feasible, if not easy, on practical and theoretical bases. The political 
dynamic that has driven the patent system to excess, particularly in the United 
States, has put pressure on companies that are not in the pharmaceutical indus- 
try from "patent trolls" — persons or companies who exact payments for the use 
of patents they hold without intending to use them productively themselves — 
and high transaction costs associated with operating in too restrictive a knowl- 
edge environment, polluted by too many unnecessary patents. These industries, 
in particular the high-technology and consumer electronics industries, have begun 
to push back on the pharmaceutical industries on reform of the basic patent law. 
The points of contention are very different from those of the access-to-medicines 
movement, but the overall direction is congruent, and the timing and common 
understanding of the need for a very powerful push provide a moment of oppor- 
tunity for creating alliances around the issue of patent reform that could sweep in 
the concerns of very different parts of the movement. As everywhere, however, 
the risk of this kind of opportunistic alliance formation is that the partnership 
dissolves as some, especially those who are powerful and interest driven, obtain 
what they need and leave. This is a risk that needs to be addressed by continuous 
engagement and framing of the ideas around the long-term, stable congruence of 
interests well beyond the opportunity of the moment. Indeed, it is in order to sta- 
bilize the alliances that make the A2K movement and its agenda feasible that the 
exercise of self -definition and theorization is important. 



234 



Looking at the long-term trends that I described in the beginning of this essay, 
the task of conceptual integration is neither incoherent nor impossible. The rise of 
the networked information economy has created the material conditions for the 
confluence of freedom, justice, and efficacy understood as effective learning and 
innovation. The decline of statism and the more or less global consensus on at least 
the inevitability of some form of market-based economy has eliminated what was 
a core unbridgeable gap between liberalism in its right and left forms and the left. 
We have seen this in the "Third Way" literature for over two decades. The emer- 
gence of networked cultural and information networks has provided the mecha- 
nism for dialogue about what is to be done and for collective action to organize to 
do it. And the development of the idea of freedom to extend to human rights and 
development has created a framework for bridging justice-seeking and freedom- 
seeking discourses. But to say that the task is neither incoherent nor impossible 
is not to say that it is easy. It is, nonetheless, necessary if the alliance represented 
by the A2K movement or by the information commons, free culture, and similar 
aligned movements is to become the basis of a new political alignment, rather than 
a temporary marriage of convenience. 



NOTES 

Peter Drahos, with John Braithwaite, Information Feudalism: Who Owns the Knowledge Econ- 
omy? (London: Earthscan, 2002). See Peter Drahos's essay, "'IP World' — Made by TNC Inc.," 
in this volume. 

See the essays by Manon A. Ress, "Open-Access Publishing: From Principles to Practice," and 
Ahmed Abdel Latif, "The Emergence of the A2K Movement: Reminiscences and Reflections 
of a Developing-Country Delegate," in this volume. 



THE INFORMATION COMMONS 235 



Ttie Coalition Against Biopiraoy presents the 

Captain Hook Awards «■ 

i s n for n 2006 



i I O PI RACY refers to the monopolization (usually through 
r intellectual property) of genetic resources and traditional 
I knowledge or culture taken from peoples or farming 
" communities that developed and nurtured those resources, 



Worst Threat to 
feod Sovereignty: 
Syngenta 

fur ill Terminator- iii:- 1 iv.;. hi designed to 
prevent potatoes from sprouting, despite the 
I'urapjny's pledge cii.il (o com menial ixc 
technologies invoking sterile seed. US patent 
rj.70D.D59 describes a genetic rnodiiic ilioi 

:;i.-lii.ni i!i.l! |if L -. ,-.nl '. -. |ir,i [in g UnlMt -in 

r!iirin>il chemical inducer is applied. 

And for Syngenta' « mulU-grnome patent 
jpjjlicjtiofl t an thousand* of gene sequences 
vital For net breeding and iih rtdiing to dozens 
■->« Other, ;>l.-,n ; =-,:-».. t -.- -- 

Greediest Stop/rate; 
J. Craig Venter 

For undertaking, wilt flagrant disregard For 
nation jl severe! gnly over biodiversity, a 
US-lunded gliifj.nL biopiracy (Xprdilioji. "" 
hi . fAthl. Sn:-.,-:,-. IJ. U . OllK I Jnd lequtnCr. 
microbial diversity from [he world's oceans 
and *euli_ The. generic material will p]ay a rnl< 
in hi; most ambitious project in data building 
an cntire-ly nrw mifitifl-l organism. 

Biggest Threat Co 
Genetic Privacy; 
Google Inc. 

For w»ming up with J, Craig Venter (r> tr**rt 

■ searchable online database or all tin; genes lan 
the planet so that individuals and pliarrnatculkal 
companies silk* cm 'googfc' our genes - en* day 
bringing the tools of biopiracy online. 

Extreme Makeover Award: 
Delta fcf Pine Land Co. 

For vowing, since 1998. to commercialize 
Terminator technology. Initially. W'fll 
promoted genetic seed sLenlizalicn for use in 
lht South lo prevent Farmers From re-using seed. 
AFtrt massive protest, (he company changed Ui 
luur and said Terminator was primarily intended 
for Northern Fiinirn. Now the company is 
greenwas-hing Terminator by promoting it as 

■ • Ml. ..lii't. tool 10 ■.'irii.-.Lii p. it- ILyiii - for 

i'inu-1: everywhere! 



Most Shameful 
j4et of Biopiracy: 
US Government 

■ or imposing plant intellectual 
properly laws on war-torn Iraq in 
June 2 DM. When US -,l.- np-.-in ,- 
forces "transferred sovereignty* Co 
Iraq, they imposed Order no. 34, 
which m.ik.j. it illegal Tor ir.,..; farmer* 

irgiSWred BAtlcc the Uw, kin'* n«w pitta I 

Uw Open i ill. doof to the mulli ii.lI 1011.1! seed 

trade . and threaten i food sovereignly. 

Worst Dejs Vu: 
Human Genographic 
Project 

For rcsMiTVfling i] tr ojd (muih ii>i redi i. J i 
Human Ginonw Diversity Project with new 
corporate money. IBM and the National 
Geogtaphpe Society ml spending S40 BtOttfln 
dollars and establishing ten research centers 
around (he globe to collect and analyse more 
than 1 '.Hi.lil.il' DMA samples from Indigenous 
Peoples, claiming this will help [hem 
uriderHJrid 'heir inf<-*tj-y, 

Access of £vil Award: 
Canada, Australia, 
New Zealand 

For repealed attempts to undermine (he tie 
facto moratorium on Terminator technology al 
the Convention on Biological Diversity (CBDt. 
And For their betrayal or Indigenous Peoples at 
the CfiO's Working Group 
on S[j> in Spain. 



Biggest Tiny 
Claim On 
Nature: 




Nanosys Inc 

For securing 

patent on 'nmal'oxide 



a third of 4e ch*»Jt 
nts of the prriodir t.i 



j: 



Worst Betrayal: 
Genencor et al. 

For patenting, cloning and celling 
'eaMncmophik - microorganism* trial tt&t 
collected from lakes in Kenya mthoul tilt 
permission oF Kenyan aulhorilii's or the 
collaborating Kenyan reiearchrr. The micro- 
organisms produce industrially-important 
Lii r-ym, i 1 ii- l-lL t.i fide blue je'nsl thai rrap 
millions for industcy but nothing for Kenya. 

Most Hypocritical: 
Joint Winners: 

University of 
C alif orn ia-D avi s 

For patenting a blight -resistant gene cxlraclrd 
ffow a riee vaiiety developed by tite FSela 
peoples of Mali, and for failing to deliver on the 
Guttle ReWmMJ Recognition Fund to benefit 
Mali's farmers. The Philippines-bas.ed public 
plant breeding institute - the International Rice 
Research: Institute - handed over the blight 
resistant rice sample to UC-Davis researchers 
in :->■>'!. i-ius when 1RRI renue^ed access to 
the blight eesislanl gene derived From the 
iantpk, UOP^vis demanded a S 1 0.000 fee. 

The Biotechnology 
Industry Organization 
(BIO) 

For writing Bonn -inspired bioptotpetting 
guidelines for use by BIO merabee companus 
and then inviting ibe compacii«i ic igniir-o them. 



Captain Hook Awards, 2006, granted by the Coalition Against Biopiracy, an informal group of organizations that first 
came together at the 1995 Conference of the Parties to the Convention on Biological Diversity meeting in Jakarta, 
Indonesia (http://www.captainhookawards.org/winners/2006_pirates). 



Access to Knowledge: 

The Case of Indigenous and Traditional Knowledge 



Carlos M. Correa 



The A2K movement generally aims at an information society where knowledge 
is openly accessible to the benefit of all. Despite a broad convergence on the ulti- 
mate objectives to be achieved, the positions of civil-society groups, governments, 
scholars, and other individuals that participate in such a movement are probably 
not unanimous. 

Divergences are most likely to arise with regard to the role, if any, of intel- 
lectual property rights. On the assumption that the more widely that a piece of 
knowledge is distributed, the better it is for the society, both for the utilization of 
the knowledge and for its further refinement and development, 1 some A2K sup- 
porters advocate for alternatives to the system of intellectual property rights. Oth- 
ers, however, find some space for the use of such rights. For instance, although 
the Adelphi Charter on Creativity, Innovation, and Intellectual Property postulates 
that humans' creative imagination "requires access to the ideas, learning and cul- 
ture of others, past and present" and that "human rights call on us to ensure that 
everyone can create, access, use and share information and knowledge, enabling 
individuals, communities and societies to achieve their full potential," the charter 
also indicates that "creativity and investment should be recognised and rewarded. 
The purpose of intellectual property law (such as copyright and patents) should 
be, now as it was in the past, to ensure both the sharing of knowledge and the 
rewarding of innovation." 2 The charter therefore does admit the idea that intellec- 
tual property rights may be granted under certain circumstances. 

Similarly, the free- and open-source software movement promotes "free" 
access to software as a means of furthering its diffusion and improvement, but 
"free" in this context does not necessarily mean that a particular piece of software 
is in the public domain, since the system relies on copyright licenses to require that 
modified versions also be freely available. Likewise, the Creative Commons scheme 



237 



utilizes licenses that forbid many of the same acts that copyright law does. 3 

Another area in which the supporters of the A2K movement may disagree 
relates to the protection of traditional knowledge. As examined in an abundant 
literature, 4 there are a number of initiatives either to extend existing intellectual 
property rights to traditional knowledge or to create new, "sui generis" rights 
conferring exclusive rights over such knowledge. In fact, some countries, such as 
Panama, have already passed legislation that recognizes some form of exclusive 
rights to registered or unregistered traditional knowledge. 5 Such legislation reveals 
a considerable diversity in the approaches followed, the objectives pursued, the 
scope of protected knowledge, and the rights conferred, among other differences. 6 
There is no agreed-upon definition of traditional knowledge. 7 The World Intel- 
lectual Property Organization (WIPO) uses the term to refer to tradition-based 
literary, artistic, or scientific works, performances, inventions, scientific discov- 
eries, designs, marks, names and symbols, undisclosed information, and all other 
tradition-based innovations and creations resulting from intellectual activity in 
the industrial, scientific, literary, or artistic fields. 8 Notably, traditional knowledge 
includes environmental or ecological knowledge and plant-based therapies ("tradi- 
tional medicine"). An operational concept of traditional knowledge may be based 
on the source of the knowledge (traditional and indigenous communities) 9 and on 
its cultural specificity, rather than on the specific content of its components. 

The United Nations Declaration on the Rights of Indigenous Peoples, adopted 
on September 7, 2007, has confirmed indigenous peoples' rights over their 
knowledge: 

Article 11 

1. Indigenous peoples have the right to practise and revitalize their cultural traditions 
and customs. This includes the right to maintain, protect and develop the past, 
present and future manifestations of their cultures, such as archaeological and his- 
torical sites, artefacts, designs, ceremonies, technologies and visual and performing 
arts and literature. 

2. States shall provide redress through effective mechanisms, which may include res- 
titution, developed in conjunction with indigenous peoples, with respect to their 
cultural, intellectual, religious and spiritual property taken without their free, prior 
and informed consent or in violation of their laws, traditions and customs. 10 

While different reasons justify the search for the protection of traditional knowl- 
edge, equity considerations have largely dominated the debates on the matter, 
especially in the light of the numerous reported cases of misappropriation (or 
"biopiracy") without any recognition or compensation to holders of traditional 
knowledge. 11 



238 



Legal regimes aimed at preventing the misappropriation of traditional knowl- 
edge seem fully compatible with the general philosophy of the A2K movement to 
the extent that their intended objective is to avoid the creation of exclusive rights 
over knowledge. More controversial may be those regimes granting some forms of 
exclusive rights over such knowledge. If granted, such rights may be exercised so 
as to impede the use of the protected knowledge by third parties without the rights 
holders' authorization. While this may be regarded as antithetical to the A2K 
open-access goal, the A2K movement may be understood not just as a libertar- 
ian agenda, but as a quest for the realization, in the area of knowledge generation 
and sharing, of the fundamental principles of justice and economic development. 
Granting rights to holders of traditional knowledge may, in some circumstances, be 
required purely for equity reasons or to improve their living conditions. 

This paper examines the extent to which intellectual property rights protection 
of traditional knowledge is compatible with the paradigm envisioned by the A2K 
movement. It is not so clear exactly what the underpinnings of A2K are, and there 
is some anxiety about where traditional knowledge fits. Hence, it is important to 
discuss how the claims for traditional knowledge protection by indigenous/tra- 
ditional communities may be reconciled with the main philosophical approach of 
the A2K movement. The paper considers, first, whether, in the context on national 
laws, traditional knowledge may be deemed a part of the public domain. Second, 
it analyzes the principles emerging from international treaties and other instru- 
ments, particularly as they may limit the options available with regard to the legal 
treatment of traditional knowledge. Finally, the paper elaborates on the implica- 
tions of the analysis for the conceptions underpinning the A2K vision. 

TRADITIONAL KNOWLEDGE AS PART OF THE PUBLIC DOMAIN 

A2K advocates expanding the public domain. Although this concept seems simple 
at first sight, defining what information is actually part of the public domain is a 
complex task. In particular, the situation of traditional knowledge is unclear. Can 
traditional knowledge that is not protected under intellectual property rights be 
considered to belong to the public domain? 

There are at least three concepts of "the public domain" employed in the con- 
text of intellectual property law that lead to different scenarios regarding the way 
the protection of traditional knowledge can be approached. 12 First, in accordance 
with a commonly used concept, information in the public domain is information 
whose intellectual protection rights have expired, information for which protec- 
tion would be appropriate, but has been lost due to a failure to comply with cer- 
tain formal requirements of intellectual property law, and information outside the 



INDIGENOUS AND TRADITIONAL KNOWLEDGE 239 



scope of legislation on intellectual property because it is not eligible for protection 
according to the law. 

In this conception, the public domain thus encompasses the entire pool of 
works and knowledge, including factual and scientific information, that is not sub- 
jected to intellectual property rights, 13 as well as any information that was not or 
could have not been subjected in the past to intellectual property rights due to a 
lack of eligibility for protection. 

Under this definition, with a few exceptions, traditional knowledge would be 
considered part of the public domain. Hence, no authorization would be needed to 
use it, nor should any compensation be paid for doing so. Indigenous and traditional 
communities would have no right to prevent the use of the knowledge they hold. 

It is worth noting that, as an exception, in some countries (including Algeria, 
Argentina, Benin, Bolivia, Burkina Fasso, Cameroon, Congo, Ivory Coast, Hungary, 
Italy, Mexico, Rwanda, Senegal, and Uruguay) the reproduction of works of art 
that have fallen into the public domain are subject to a payment to the state. This 
is called a "paying public domain" (domain public payant).' IA 

In the second concept of the public domain, the notion is regarded more restric- 
tively Strictly construed, the concept of the public domain does not refer to works 
that are inherently unprotectable, but only to subject matter that could have had 
intellectual property protection that for some reason was not obtained and that 
was previously protected and has later fallen into the public domain. The latter 
is the sense of the term that is invoked in the Agreement on the Trade-Related 
Aspects of Intellectual Property Rights (TRIPS). 15 This narrower concept of the 
public domain excludes all material that was never eligible for protection. This 
would leave out, for example, purely fact-based information, unoriginal works, 
and nonpatentable techniques. Likewise, traditional knowledge that is not sus- 
ceptible to protection under the conventional forms of intellectual property rights 
would not be part of the public domain defined in this way. Holders of traditional 
knowledge therefore might exercise the rights that national legislation would rec- 
ognize, if any, over the knowledge they possess and require authorization or pay- 
ment for its use. 

In a third conception, information in the public domain may be broadly under- 
stood as information that can be freely used without effectuating payment to third 
parties or obtaining authorization from them. 16 The public domain in this sense 
is "a collection of things available for all people to access and consume freely" 17 
Although works protected by copyright may be freely accessible under "fair use" 
or other exceptions, this may not be deemed to put such works into the public 
domain, because only limited uses are allowed under the conditions determined by 
the applicable law. 18 The extent to which traditional knowledge may be considered 



240 



freely accessible and usable would determine whether it may be considered to be 
part of the public domain or not under this definition. 

Western intellectual property systems have regarded traditional knowledge as 
information freely available for use by anybody. As a result, traditional knowl- 
edge has often been published or exploited without any recognition, moral or 
economic, to those who originated or preserved the relevant knowledge. Further, 
diverse components of traditional knowledge have been appropriated under intel- 
lectual property rights regimes by researchers and commercial enterprises without 
the prior consent of and any compensation to the knowledge creators or holders. 
Well-known examples include U.S. patent 5,304,718 on a quinoa variety granted 
to researchers of the Colorado State University and U.S. patent 5,401,504 relating 
to the wound-healing properties of turmeric, as well as a diversity of patents on 
products based on plant materials and local or indigenous communities' knowledge 
such as the neem tree, kava, barbasco, maca, and endod. 19 

Traditional knowledge has been considered de facto as freely usable and 
appropriable. A survey of scientific journals indicated that articles in twenty-five 
journals in English, French, and Chinese made explicit references to traditional 
medicinal uses of the substances described. 20 University-based authors from both 
developed and developing countries accounted for an overwhelming 81 percent of 
such publications. Among developing countries, the leading producers of ethno- 
medical publications were India (twenty publications), Brazil (nineteen), Mexico 
(ten), Argentina (ten), South Africa (nine), Turkey (nine), and Nigeria (six). 

These differing interpretations of the scope of the public domain in relation to 
traditional knowledge have been one of the hurdles confronting the still-ongoing 
debates about protection of and compensation for traditional knowledge. 21 What 
is in the public domain is determined, in the last instance, by national laws, in 
accordance with the principle of territoriality applicable in the area of intellectual 
property law. 22 In fact, "information is not in the public domain because of its 
nature as a public good or even its governmental origin but as a result of a network 
of formal and informal social agreements, explicit or implicit but entrenched in the 
common law and in the culture of a society." 23 Therefore, the limits of the public- 
domain spectrum can be greater or smaller, depending on the types and degree of 
appropriation determined by the law of a particular state. Such limits depend, in 
the last instance, on debates and decisions at the national and international levels. 

Unlike the public domain under administrative law, which is subject to limits 
established by the state, such as the authorization to use assets privately under 
governmental control as part of public-services concessions, the public domain 
under intellectual property law is, in principle, absolute and mandatory, 24 mean- 
ing that it cannot be the object of private appropriation unless a new law expands 



INDIGENOUS AND TRADITIONAL KNOWLEDGE 241 



the limits of what may be appropriated, as the European Directive 96/9/CE did, 
for example, for the protection of nonoriginal databases. It is also possible for 
information in the public domain to have its protection restored, as stipulated, for 
example, by Article 70.2 of the TRIPS Agreement. In applying this article in 1994, 
the U.S. Uruguay Round Agreement Act restored authors' rights for foreign works, 
such as movies and music, that had not been protected earlier in the United States. 

The legal status of traditional knowledge as a part of the public domain thus 
depends, in principle, upon determinations made under national laws. However, 
national legal solutions vary considerably today. Some countries have adopted, 
as noted above, sui generis legislation that clearly removes traditional knowledge 
from the public domain by conferring exclusive or remuneration rights of various 
kinds. 25 One example is Panama's Law No. 20 of June 26, 2002, which established 
a special regime of intellectual property on the collective rights of indigenous 
peoples for the protection and defense of their cultural identity and traditional 
knowledge. The subject matter protected under this law encompasses customs, 
traditions, beliefs, spirituality, cosmovision (the worldviews of the Mesoamerican 
peoples), folkloric expressions, artistic manifestations, traditional knowledge, and 
any other type of traditional expression of indigenous communities that are part 
of their cultural assets — their cultural heritage. In order to be protectable, the sub- 
ject matter must be collective in nature, capable of commercial use, based upon 
tradition (although it need not be "old") and fit within the classification system 
established by the law. "Collective intellectual property rights" and "traditional 
knowledge" under this law are embodied in creations such as inventions, models, 
designs, and drawings, in innovations contained in images, figures, graphic sym- 
bols, petroglyphs and other material, and in cultural elements of history, music, 
the arts, and traditional artistic expressions. The collective rights granted under 
this regime permit rights holders to prevent the use, commercialization, industrial 
reproduction, or acquisition of exclusive intellectual property rights over the sub- 
ject matter and allow for the certification of cultural expressions as works of indig- 
enous traditional art or handicraft and as handmade by natives. 

In the case of Peru, in addition to recognizing the indigenous people's owner- 
ship of intellectual property and associated rights, the Law Establishing a Regime 
of Protection of the Collective Knowledge of Indigenous Peoples Related to Bio- 
logical Resources of 2002 provides that if collective knowledge has passed into the 
public domain in the last twenty years, a percentage of the value, before taxes, 
of the gross sales resulting from the marketing of products developed from this 
knowledge is to be set aside for the Fund for the Development of Indigenous 
Peoples. The fund will also receive a minimum 10 percent of the gross sales, 
before taxes, resulting from the marketing of products developed from collective 



242 



knowledge. 26 This regime has attracted little interest from indigenous peoples so 
far, despite the efforts of the government to promote its use. 

In other countries, unpublished traditional knowledge is deemed to belong in 
the public domain and may be appropriated without the consent or compensation 
of its holders. This is notably the case in the United States, where disclosure of the 
claimed invention in a nonwritten form is not an obstacle to patenting. According 
to Article 102 of the Patent Law (35 United States Code): 

A person shall be entitled to a patent unless — 

(a) the invention was known or used by others in this country, or patented or 
described in a printed publication in this or a foreign country, before the inven- 
tion thereof by the applicant for patent, or 

(b) the invention was patented or described in a printed publication in this or a for- 
eign country or in public use or on sale in this country, more than one year prior 
to the date of the application for patent in the United States. 27 

This concept of relative novelty implies that traditional knowledge, even if publicly 
used, but not documented in a foreign country, is patentable in the United States. 
As a result, several patents relating to or consisting of genetic materials or tradi- 
tional knowledge acquired in developing countries have been granted to researchers 
or firms by the U.S. Patent and Trademark Office. A classic example is the patent- 
regarded as outrageous by some indigenous communities in Amazonia — covering a 
variety of the ayahuasca vine {Banisteriopsis caapi). In 1986, after research in Ecua- 
dorian Amazonia, a U.S. scientist was granted U.S. plant patent 5,751. Ayahuasca is 
the vernacular name for the plant among the Amazon Quichua people, in whose 
language ayahuasca means "vine of the spirits." It is used for many medicinal and 
ritual purposes. Although the validity of the patent was legally challenged, it was 
confirmed by the U.S. Patent and Trademark Office in 2001. 28 

In sum, there is no unique response to the legal status of traditional knowledge 
as part of the public domain. Its legal treatment is determined by national law- 
subject to the territoriality principle — and by applicable international law. 

THE LEGAL STATUS OF TRADITIONAL KNOWLEDGE UNDER INTERNATIONAL LAW 

The legal status of traditional knowledge under international law is also consider- 
ably uncertain. Article 8(j) of the Convention on Biological Diversity requires the 
contracting parties to "respect, preserve and maintain knowledge, innovations and 
practices of indigenous and local communities embodying traditional lifestyles rel- 
evant for the conservation and sustainable use of biological diversity and promote 
their wider application with the approval and involvement of the holders of such 



INDIGENOUS AND TRADITIONAL KNOWLEDGE 243 



knowledge, innovations and practices and encourage the equitable sharing of the 
benefits arising from the utilization of such knowledge, innovations and practices." 
The Convention on Biological Diversity qualifies this recognition by indicating that 
a state must do this only "as far as possible and as appropriate" and "subject to its 
national legislation." 29 Although the adoption of this provision gave an unprece- 
dented impulse to international discussions on the protection of traditional knowl- 
edge because it signaled the interest of the international community in protecting 
that knowledge, it does not bind states to protect traditional knowledge in their 
own territories. In accordance with the Convention on Biological Diversity, access 
to genetic resources is subject to the consent of the state (Article 15.5). Some states 
have passed access regulations (for example, the Philippines and the Andean Com- 
munity) 30 that require prior informed consent of the relevant traditional communi- 
ties or indigenous peoples, but this is beyond what the the Convention on Biologi- 
cal Diversity requires. 

Likewise, the Food and Agriculture Organization International Treaty on Plant 
Genetic Resources for Food and Agriculture recognized, but deferred to national 
governments the implementation of "Farmers' Rights." In Article 9.2 of the treaty: 

The Contracting Parties agree that the responsibility for realizing Fanners' Rights, 
as they relate to plant genetic resources for food and agriculture, rests with national 
governments. In accordance with their needs and priorities, each Contracting Party 
should, as appropriate, and subject to its national legislation, take measures to pro- 
tect and promote Farmers' Rights, including: 

(a) protection of traditional knowledge relevant to plant genetic resources for food 
and agriculture. 

Like the provision in the Convention on Biological Diversity, this article does 
not set a uniform standard, because protection of traditional knowledge is to 
be provided by a contracting party "as appropriate, and subject to its national 
legislation." 31 

The international conventions on human rights also contain elements relevant 
to the analysis of the legal status of traditional knowledge. The Universal Declara- 
tion of Human Rights established in Article 27(2) that "everyone has the right to 
the protection of the moral and material interests resulting from any scientific, 
literary or artistic production of which he is the author." 32 Although this proclama- 
tion refers to the "author," there is no reason to presume that it does not apply to 
cases of collective authorship, as in the case of indigenous or traditional communi- 
ties' cultural expressions. 

The International Covenant on Economic, Social and Cultural Rights contains 
a similar clause in Article 15(c). It affirms that everyone has the right "to benefit 



244 



from the protection of the moral and material interests resulting from any scien- 
tific, literary or artistic production of which he is the author." 33 Significantly, the 
Committee on Economic, Social and Cultural Rights, the body charged with inter- 
preting the International Covenant on Economic, Social and Cultural Rights, in its 
"General Comment 17" on article 15(c), specifically states that "the moral and mate- 
rial interests resulting from one's scientific, literary and artistic productions safe- 
guards the personal link between authors and their creations and between peo- 
ples, communities, or other groups and their collective cultural heritage." It also 
affirms that states "should adopt measures to ensure the effective protection of 
the interests of indigenous peoples relating to their productions, which are often 
expressions of their cultural heritage and traditional knowledge." 34 

It is to be noted that the Committee on Economic, Social and Cultural Rights 
does not refer to "intellectual property rights" but more generally to "interests." 
In "General Comment 17," it draws a distinction between human rights, which "are 
fundamental as they are inherent to the human person as such," and intellectual 
property rights, which "are first and foremost means by which States seek to pro- 
vide incentives for inventiveness and creativity, encourage the dissemination of 
creative and innovative productions, as well as the development of cultural identi- 
ties, and preserve the integrity of scientific, literary and artistic productions for 
the benefit of society as a whole." 35 The comment adds: 

In contrast to human rights, intellectual property rights are generally of a temporary 
nature, and can be revoked, licensed or assigned to someone else. While under most 
intellectual property systems, intellectual property rights, often with the exception 
of moral rights, may be allocated, limited in time and scope, traded, amended and 
even forfeited, human rights are timeless expressions of fundamental entitlements 
of the human person. Whereas the human right to benefit from the protection of 
the moral and material interests resulting from one's scientific, literary and artistic 
productions safeguards the personal link between authors and their creations and 
between peoples, communities, or other groups and their collective cultural heri- 
tage, as well as their basic material interests which are necessary to enable authors 
to enjoy an adequate standard of living, intellectual property regimes primarily pro- 
tect business and corporate interests and investments. Moreover, the scope of pro- 
tection of the moral and material interests of the author provided for by article 15, 
paragraph 1(c), does not necessarily coincide with what is referred to as intellectual 
property rights under national legislation or international agreements. 36 

As this comment suggests, although traditional knowledge does not need to 
be protected under intellectual property rights, the moral and material interests 
of those who create and maintain traditional knowledge need to be respected as 



INDIGENOUS AND TRADITIONAL KNOWLEDGE 245 



human rights. An implication of this statement is that the misappropriation of 
traditional knowledge, for instance through patents by those lacking the right 
to apply for them (or by those who have failed to compensate and acknowledge 
the contributions of others), violates a fundamental right. Moreover, traditional 
knowledge may not be considered freely available and usable by any party. Hence, 
it cannot be regarded as integrated with the public domain in the sense of informa- 
tion free to be used and consumed. 

Finally, the United Nations Declaration on the Rights of Indigenous Peoples, 
adopted by the UN General Assembly in September 2007, recognizes that "respect 
for indigenous knowledge, cultures and traditional practices contributes to sus- 
tainable and equitable development and proper management of the environment." 
Specifically, Article 31 of the declaration states the following: 

1. Indigenous peoples have the right to maintain, control, protect and develop 
their cultural heritage, traditional knowledge and traditional cultural expres- 
sions, as well as the manifestations of their sciences, technologies and cultures, 
including human and genetic resources, seeds, medicines, knowledge of the 
properties of fauna and flora, oral traditions, literatures, designs, sports and tra- 
ditional games and visual and performing arts. They also have the right to main- 
tain, control, protect and develop their intellectual property over such cultural 
heritage, traditional knowledge, and traditional cultural expressions. 

2. In conjunction with indigenous peoples, States shall take effective measures to 
recognize and protect the exercise of these rights. 37 

In more straightforward wording than that used in the Convention on Bio- 
logical Diversity and the International Covenant on Economic, Social and Cultural 
Rights, the declaration affirms that indigenous peoples have the "right to main- 
tain, control, protect and develop" their knowledge and "also the right to . . . their 
intellectual property." Consistently with "Comment 17," the declaration does not 
subsume all rights over traditional knowledge into the categories of intellectual 
property. This means that these rights exist independently from their formal rec- 
ognition as intellectual property. The declaration thus also seems to support the 
view that traditional knowledge is not a res nullius that everyone may use and 
eventually appropriate to his or her own benefit. 

It is beyond the scope of this paper to discuss the legal value or status of the 
referred-to provisions in the Convention on Biological Diversity, the International 
Covenant on Economic, Social and Cultural Rights, and the UN declarations. What- 
ever that legal value is, however, they state unequivocally that traditional knowl- 
edge may not be considered to belong to the public domain or to be open for free 
and/or uncompensated use. The discussed precedents of international law suggest 



246 



some limits to nations' freedom with regard to traditional knowledge. As a mini- 
mum, they cannot treat traditional knowledge as freely available and appropriable 
information, nor can they legitimize the misappropriation of traditional knowledge 
on the basis of legal fictions, such as assuming that information not published 
within a given territory is "novel" and hence susceptible of being patented by the 
person who disclosed it in a patent application. 

IMPLICATIONS FOR A2K 

The preceding analysis indicates that traditional knowledge cannot, in accordance 
with accepted principles of international law, be deemed part of the public domain 
if "the public domain" is defined as the pool of information that is freely usable. 
It may, however, be considered part of the public domain if the concept is more 
narrowly interpreted as including information not covered by intellectual property 
rights, but not necessarily freely usable for this reason. 

Is this conclusion consistent with the initiatives aiming at promoting access to 
and wide diffusion of knowledge? This seems to be the case if it is accepted that 
such initiatives consent to some form of "balanced" intellectual property rights, pro- 
tection of traditional knowledge does not necessarily entail the granting of exclu- 
sive intellectual property rights, and protection of traditional knowledge is justi- 
fied, among other reasons, by considerations of equity and human development. 

In effect, the majority of the actors in the A2K movement do not seek the abo- 
lition of all forms of intellectual property rights, but the proper balance between 
public and private interests. The Adelphi Charter, for instance, points out that "the 
public interest requires a balance between the public domain and private rights. It 
also requires a balance between the free competition that is essential for economic 
vitality and the monopoly rights granted by intellectual property laws." 38 James 
Boyle, in his "Manifesto on WIPO and the Future of Intellectual Property," also 
calls for balance: 

As intellectual property protection has expanded exponentially in breadth, scope 
and term over the last 30 years, the fundamental principle of balance between the 
public domain and the realm of property seems to have been lost. The potential 
costs of this loss of balance are just as worrisome as the costs of piracy that so 
dominate discussion in international policy making. Where the traditional idea of 
intellectual property wound a thin layer of rights around a carefully preserved pub- 
lic domain, the contemporary attitude seems to be that the public domain should be 
eliminated wherever possible. Copyrights and patents, for example, were tradition- 
ally only supposed to confer property rights in expression and invention respec- 
tively. The layer of ideas above, and of facts below, remained in the public domain 



INDIGENOUS AND TRADITIONAL KNOWLEDGE 247 



for all to draw on, to innovate anew. Ideas and facts could never be owned. Yet 
contemporary intellectual property law is rapidly abandoning this central principle. 
Now we have database rights over facts, gene sequence, business method and soft- 
ware patents, digital fences that enclose the public domain together with the realm 
of private property . . . the list continues. 39 

Protection of traditional knowledge, 40 on the other hand, may be conceived of 
as a means to prevent different modalities of the misappropriation of traditional 
knowledge (sometimes called "defensive" protection), rather than as a tool for the 
granting of positive rights (often called "offensive protection"). Moreover, positive 
rights may not confer exclusivity. They may be based on a remuneration right or a 
liability rule, 41 in line with the paradigm of the Convention on Biological Diversity, 
which does not require or suggest the establishment of exclusive rights. 42 Indeed, 
many indigenous communities reject the very idea of exclusive property over their 
knowledge or of obtaining payment for its use. In addition, if intellectual property 
rights were established for traditional knowledge, their holders might encounter 
enormous difficulties in enforcing them, given the need to comply with certain for- 
malities (except in the case of copyright) and, above all, the high cost of enforcing 
rights in courts. Enforcement procedures are generally long and may be prohibi- 
tively costly for holders of traditional knowledge, particularly if litigation is to take 
place in foreign countries. 43 In some cases, such as in the case of the U.S. patent 
on an ayahuasca variety, NGOs assumed the defense of the interests of traditional 
knowledge holders, and this may be the only feasible approach in many situations. 

Finally, one of the main reasons for seeking protection for traditional knowl- 
edge (often implicit in various analyses and proposals on the subject) is the lack 
of equity in current relations between indigenous/traditional communities and 
the rest of society. A main objective of such protection would be to obtain moral 
recognition or some economic compensation for the commercial use of traditional 
knowledge, or both. In addition, the protection of traditional knowledge may be 
a component of policies aimed at preserving the cultures of those communities 
while ensuring possession of their lands and participation in decisions that affect 
the use of resources under their control. If properly designed and implemented, 
traditional knowledge protection thus may be instrumental to human development 
and the realization of human rights. 

CONCLUSION 

A number of ongoing initiatives aim at broadening A2K. Given the importance of 
traditional knowledge for developing countries and the imperative to ensure an 



248 



equity-based utilization of that knowledge, it seems necessary to clarify its legal 
status and the conditions under which it may be eventually appropriated or shared. 

In accordance with Western intellectual property rights laws and principles, 
knowledge created and held by indigenous or traditional communities may be 
deemed to belong to the public domain if understood as the pool of knowledge 
that is not subject to existing modalities of intellectual property rights. This would 
mean that traditional knowledge could be freely used without prior consent from 
or compensation to their holders. 

National law determines what does and does not belong in the public domain. 
In some cases, national solutions permit the appropriation of traditional knowledge 
by individuals or companies that have obtained access to traditional knowledge, 
even without the consent of its holders. A number of provisions in international 
instruments, however, recognize rights in favor of such communities. Although 
such rights do not necessarily pertain to one of the categories of intellectual prop- 
erty rights, they would clearly exclude traditional knowledge from the realm of 
freely usable knowledge. 

The need to protect traditional knowledge may be justified, among other rea- 
sons, on the grounds of equity and development. Protection for intellectual prop- 
erty rights does not seem incompatible with the philosophy that underpins the A2K 
movement, particularly if such protection is conceived in defensive terms, with the 
intention of preventing misappropriation, rather than asserting positive rights. 



NOTES 

On the relationship between innovation and diffusion see, for example, Organisation for Eco- 
nomic Co-operation and Development, Technology and the Economy: The Key Relationships 
(Paris: Organisation for Economic Co-operation and Development,1992). 

See http://sitoc.biz/adelphicharter/adelphi_charter_document.asp.htm (last accessed April 
20, 2009). This charter certainly cannot be considered "the" charter of the A2K movement, 
because it is only the consensus view of a number of individuals, but it may be deemed as 
representative of the thinking behind the movement. 

See, for instance, the description of Creative Commons licenses at http://creativecommons. 
org/about/licenses/ (last accessed April 21, 2009). 

See, for example, Sophia Twarog and Promila Kapoor (eds.), Protecting and Promoting Tradi- 
tional Knowledge: Systems, National Experiences and International Dimensions (2004), avail- 
able on-line at http://www.unctad.org/en/docs/ditctedlo_en.pdf. See also the selection of 
legislative texts in World Intellectual Property Organization, Legislative Texts on the Protec- 
tion of Traditional Knowledge and Traditional Cultural Expressions (Expressions of Folklore) 



INDIGENOUS AND TRADITIONAL KNOWLEDGE 249 



and Legislative Texts Relevant to Genetic Resources, available on-line at http://www.wipo. 
int/tk/en/laws (both last accessed April 21, 2009). 

5 See Carlos M. Correa, "Protecting Traditional Knowledge: Lessons from National Experi- 
ences," inTwarog and Kapoor (eds.), Protecting and Promoting Traditional Knowledge . 

6 Ibid, 

7 See Chidi Oguamanan, International Law and Indigenous Knowledge: Intellectual Property, 
Plant Biodiversity and Traditional Medicine (Toronto: University of Toronto Press, 2006), p. 15. 

8 World Intellectual Property Organization, Intellectual Property Needs and Expectations of 
Traditional Knowledge Holders (Geneva: WIPO, 2001), p. 25, available on-line at http://www. 
wipo.int/tk/en/tk/ffm/report/index.html (last accessed April 21, 2009). 

9 The distinction between "indigenous" and "traditional" knowledge has been deemed super- 
ficial, because both share common characteristics. See Oguamanan, International Law and 
Indigenous Knowledge, p. 20. 

10 United Nations Declaration on the Rights of Indigenous Peoples, available on-line at http:// 
www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (last accessed April 21, 2009). 

11 For a discussion on the subject, see Carlos M. Correa, Protection and Promotion of Traditional 
Medicine: Implications for Public Health in Developing Countries (Geneva: South Centre, 2002), 
available on-line at http://www.who.int/medicinedocs/collect/medicinedocs/pdf/s49i7e/ 
s49i7e.pdf (last accessed April 21, 2009). 

12 For a discussion of different definitions of the public domain, see Pamela Samuelson, 
"Enriching Discourse on Public Domains," Duke Law Journal 55 (2006), available on-line 
at http://people.ischool.berkeley.edu/~pam/papers/enriching%20discourse%200n%20 
public%20domains.pdf (last accessed April 21, 2009). The notion of the "public domain" is 
also used in administrative law to refer to things under the control of or subject to the prop- 
erty of the state. 

13 On facts as part of the public domain, see Corynne McSherry, Who Owns Academic Work?: 
Battling Over the Control of Intellectual Property (Cambridge, MA: Harvard University Press, 
2001), who argues that "data, especially scientific data, are classic public domain material" 
(p. 191). On scientific information as part of the public domain, see J. H. Reichman and Paul 
F. Uhlir, "Database Protection at the Crossroad: Recent Developments and Their Impact on 
Science and Technology" (1999), available on-line at http://eprints.law.duke.edU/i5i8/l/i4_ 
Berkeley_Tech._L. J._793_(l999).pdf (last accessed April 21, 2009). 

14 See Delia Lipszyk, Derecho de autor y derechos conexos (Paris: United Nations Educational, 
Scientific, and Cultural Organization, 1993). 

15 The agreement uses the term "public domain" only once, in relation to protectable material 
that is no longer protected (Article 70.3). The TRIPS Agreement is available on-line at http:// 
www.wto.org/english/tratop_e/trips_e/t_agmo_e.htm (last accessed March 22, 2009). 

16 William van Caenegem, "The Public Domain: Scientia Nullius," European Intellectual Property 
Review 24, no. 6 (2002): p. 324. 

17 Inge Kaul, Pedro Conceicao, Katell Le Goulven, and Ronald U. Mendoza, "Why Do Public 
Goods Matter Today?" in Inge Kaul, Pedro Conceicao, Katell Le Goulven, and Ronald U. Men- 
doza R. (eds.), Providing Global Public Goods: Managing Globalization (New York: Oxford Uni- 
versity Press, 2003), p. 8. 

18 On the "fair use" exception, see Carlos M. Correa, "Fair Use in the Digital Era," International 
Review of Industrial Property and Copyright Law 33, no. 5 (2002). 



250 



19 The neem tree (Azadirachta indica) is a tree in the mahogany family native to South Asia 
that is a major component in ayurvedic medicine and that is said to treat several different 
diseases. Kava (Piper methysticum) is used traditionally in the western Pacific as a mild tran- 
quilizer. Barbasco (Dioscorea mexicana) is an inedible wild Mexican yam from which pro- 
gesterone can be synthesized. It is also the common name of a South American evergreen 
tree (Lonchocarpus urucu) that is a natural source of rotenone, a fish poison. Maca (Lepid- 
ium meyenii) is a herbaceous plant of the Andes with several claimed health benefits. Endod 
(Phytolacca dodecandra), a plant that occurs throughout sub-Saharan Africa and parts of 
South America and Asia, is a potent molluscicide and is used to kill snails. 

20 Russel Barsh, "Who Steals Indigenous Knowledge?" Proceedings of the 95th Annual Meeting 
of the American Society of International Law (2001): pp. 153-61. The largest number of articles 
were found in the Journal of Ethnopharmacology (128 articles, or 51 percent of the total), 
Pharmaceutical Biology (50 articles, or 19 percent), Economic Botany (14 articles, or 6 percent), 
and Phytomedicine (12 articles, or 5 percent). 

21 Note, for example, the failure to deliver concrete outputs on the subject of traditional knowl- 
edges by the WIPO Intergovernmental Committee on Intellectual Property and Genetic 
Resources, Traditional Knowledge and Folklore, which held its eleventh session on July 3 to 
12, 2007, in Geneva. 

22 In conformity with this principle, the existence and validity of intellectual property rights 
are to be judged in accordance with the law of the jurisdiction where protection is obtained. 
One corollary of this principle is that decisions, for instance on the validity of a patent in one 
country, do not affect an equivalent patent in other countries. 

23 Clemente Forero-Pineda, "Scientific Research, Information Flows, and the Impact of Data- 
base Protection on Developing Countries," in Julie M. Esanu and Paul F. Uhilr (eds.), Open 
Access and the Public Domain in Digital Data and Information for Science: Proceedings of an 
International Symposium (Washington, D.C.: The National Academies Press, 2004), p. 40, 
available on-line at http://books.nap.edu/catalog.php?record_id=ll030#toc (last accessed 
April 21, 2009). 

24 Stephanie Choisy, Le domain public en droit d'auteur (Paris: Litec, 2002), p. 53. 

25 See Correa, "Protecting Traditional Knowledge." 

26 See Begoha Venero Aguirre, "The Peruvian Law on Protection of the Collective Knowledge of 
Indigenous Peoples Related to Biological Resources," in Christophe Bellmann, Graham Dut- 
field, and Ricardo Me lendez -Ortiz (eds.), Trading in Knowledge: Development Perspectives on 
TRIPS, Trade, and Sustainability (London: EARTHSCAN, 2003). 

27 U.S. Patent and Trademark Office, "35 U.S. C. 102: Conditions for Patentability; Novelty and Loss 
of Right to Patent —Patent Laws," available on-line at http://www.uspto.gov/web/offices/ 
pac/mpep/documents/appxl_35_U_S_C_l02.htm#usc35sl02 (last accessed April 21, 2009). 

28 See Correa, Protection and Promotion of Traditional Medicine. 

29 The Convention on Biological Diversity, "Article 8. In-situ Conservation," available on-line at 
http://www.cbd. int/convention/articles.shtml?a=cbd-o8 (last accessed April 21, 2009). 

30 See Carlos M. Correa, "The Access Regime and the Implementation of the FAO International 
Treaty on Plant Genetic Resources for Food and Agriculture in the Andean Group Countries," 
Journal of World Intellectual Property 6, no. 6 (November 2003). 

31 International Treaty on Plant Genetic Resources for Food and Agriculture, Article 9.2, 
available on-line at http://www.sipo.gov.cn/sipo/ztxx/yczyhctzsbh/zlk/gjgy/200508/ 



INDIGENOUS AND TRADITIONAL KNOWLEDGE 251 



P02006040360i42796i427.pdf (last accessed April 21, 2009). 

32 The Universal Declaration of Human Rights is available on-line at http://www.un.org/Over- 
view/rights.html (last accessed April 22, 2009). 

33 The International Covenant on Economic, Social and Cultural Rights is available on-line at 
http://www.unhchr.ch/html/menu3/b/a_cescr.htm (last accessed April 22, 2009). 

34 See Committee on Economic, Social and Cultural Rights, "General Comment No. 17 (2005)," 
November 21, 2005, E/C.12/GC/17, January 12, 2006, para. 32, available on-line at http: //por- 
tal, unesco.org/culture/en/files/30545/1143214222icomment_en.pdf/comment_en.pdf. 

35 Ibid., para. 1. 

36 Ibid., para. 2. 

37 United Nations Declaration on the Rights of Indigenous Peoples, Article 31. 

38 The Adelphi Charter on Creativity, Innovation, and Intellectual Property, principle 3. 

39 James Boyle, "A Manifesto on WIPO and the Future of Intellectual Property," Duke Law and 
Technology Review no. 9 (2004): p. 2, available on-line at http://www.law.duke.edu/journals/ 
dltr/articles/PDF/2004DLTRooo9.pdf (last accessed April 22, 2009). 

40 See the analysis of the various meanings of "protection" in Correa, Protection and Promotion 
of Traditional Medicine. 

41 See on this concept Jerome H. Reichman, "Of Green Tulips and Legal Kudzu: Repackaging 
Rights in Subpatentable Innovation," Vanderbilt Law Review 53, no. 6 (November 2000): 
pp. 1743-98. 

42 The UN declaration uses the word "control," but this concept is not equivalent to exclusivity 
See, for instance, Article 39.2 of the TRIPS Agreement, where this distinction becomes apparent. 

43 For instance, in the United States, according to the 2006 Economic Report of the President, 
median litigation costs average $4 million each for the plaintiff and defendant when more 
than $25 million is at stake in a patent suit. Executive Office of the President of the United 
States, Economic Report of the President Transmitted to the Congress February 2006 Together 
with the Annual Report of the Council of Economic Advisers, available on-line at http://www. 
gpoaccess.gov/eop/2006/2006_erp.pdf (last accessed April 22, 2009). 



252 



Undermining Abundance: 

Counterproductive Uses of Technology and Law 

in Nature, Agriculture, and the Information Sector 



Roberto Verzola 



After World War II, the chemical industries of the West shifted their attention 
back to civilian applications, including the large-scale production of synthetic 
urea, organochlorines, and other fertilizers and pesticides. These agrochemicals 
were marketed supposedly to provide additional nutrition for farmers' crops and 
to kill crop pests. However, farmers and governments did not realize that these 
products also killed, incapacitated, weakened, or otherwise made life difficult for 
very important but little-known creatures: soil organisms that turn organic matter 
into natural plant food and friendly organisms such as predators and parasites that 
keep pest populations in check. These creatures constituted a vast, largely invis- 
ible, and unrecognized commons into which all farmers unknowingly tapped every 
time they planted seeds and grew crops. In their defense, the chemical industry 
might claim that they did not know, either, which would be an admission of reck- 
lessness, if not negligence. But this excuse was untenable by the 1960s, when the 
chemical industry viciously attacked Rachel Carson and her book, Silent Spring,' 1 
which called attention to the harmful effects of DDT and other agrochemicals on 
nontarget organisms, including human beings. 2 

In effect, the chemical industry was selling farmers and governments a deadly 
technological Trojan horse, an antiabundance poisoned pill. Agrochemicals 
appeared to offer more abundant harvests. In truth, their deployment would gradu- 
ally weaken and take the life out of the farmers' biological support systems, includ- 
ing natural sources of plant food and the enemies of pests. As more agrochemicals 
were used, the diverse soil populations dwindled, the soil became less fertile, and 
farmers' crops starved. To keep the plants from starving, more synthetic fertilizers 
had to be added, which caused the living soil populations to dwindle even further. 
As the predator and parasite populations likewise dwindled, pest populations went 
up. So farmers had to spray more pesticides, which then killed even more predators 



253 



and parasites. More recent studies based on the theory of trophobiosis — the theory 
that the relations between plant and parasite are essentially nutritional in nature — 
suggest that synthetic fertilizers actually make plants more attractive to pests. 3 
Farmers who took the poisoned pill were caught in the trap and fell into agrochemi- 
cal addiction, draining life out of the soil and around the crops. 

UNDERMINING ABUNDANCE, CREATING SCARCITY 

The poisoned pill of agrochemical fertilizers and pesticides is just one example of 
the ways in which technology and, as we will see, the law are increasingly used to 
undermine processes of abundance intrinsic to nature and agriculture and even 
processes intrinsic to the information sector as well. A variety of techniques based 
in both technology and law, separately or in various combinations, are being inten- 
tionally used counterproductively by businesses and governments to undermine 
abundance and create artificial scarcity. In the examples that follow, technological 
approaches such as copy protection, copy restriction, copy identification, and user 
restriction often are combined with legal restrictions such as the enforcement of 
patents, copyrights, and plant-variety protection and with bans on simple copy- 
ing, seed sales, and seed exchanges. They are also combined with laws to protect 
technological copy-protection schemes from being bypassed or to mandate its use. 
These technologies are actively promoted by governments through incentives such 
as low-cost credit, subsidies, and other forms of support, while similar incentives 
are withdrawn from competing technologies. If the poisoned-pill strategy or these 
other strategies fail to work, the abundant resource and related know-how often 
are simply ignored or suppressed as much as possible. 

AGRICULTURE AND THE LAW: SEED DEPENDENCE 

In the 1960s, the International Rice Research Institute introduced IR-8, the first of a 
series of new "high-yielding varieties" of rice whose high yields partly came from 
their better responsiveness to chemical treatment. 4 Farmers were wary, and few 
were willing to let go of their traditional varieties. Drawn by aggressive govern- 
ment subsidies and lending programs, however, more and more farmers switched. 
As they did, they also stopped planting their heirloom varieties, which were soon 
lost, because the old seeds they had saved dried up and died. As the heirloom vari- 
eties disappeared and dependence on high-yielding varieties grew, farmers also 
lost their selection and breeding skills. 

Agrochemicals and the new chemically responsive varieties would eventually 
be promoted as the "Green Revolution." 5 Even today, this technological poisoned 



254 



pill continues to keep millions of farmers addicted to agrochemicals, mired in 
poverty and debt. 

Another facet in the technological substitutions of this period in nature and 
agriculture was the gradual replacement of work animals by farm machinery. In the 
Philippines, for instance, carabaos — a domesticated subspecies of water buffalo — 
were the farmers' main source of mechanical power. Carabaos also grazed the less 
fertile areas around the farm, their dung enriching the soil. The animal usually 
recovered by itself from injury or sickness. Even more — perhaps the most amazing 
thing of all— the female carabao can give birth to another carabao every two years 
or so. Yet through the same poisoned-pill strategy, farm machinery suppliers and 
the government eventually managed to get many farmers to switch to a mechani- 
cal power source that cost a fortune, was fueled by expensive imported gasoline 
instead of free grass, gave out noxious pollutants instead of milk and natural fertil- 
izer, required a skilled technician and costly spare parts if it stopped working, and 
of course never gave birth to its own replacement. 

Also in the 1960s, another development would worsen this slippery slide 
toward seed dependence. U.S. seed companies introduced their commercial version 
of the Fl corn hybrid developed decades earlier in the public sector. 6 ("Fl" means 
the first filial generation after crossing two different parental lines.) Unlike heir- 
loom varieties, Fl hybrids did not breed true. When their seeds are replanted, the 
offsprings' characteristics segregate, and the desirable traits are expressed weakly 
or irregularly in subsequent generations. So regardless of the benefits that the cur- 
rent crop might offer, saving seeds becomes pointless. 

Corn farmers now had to buy hybrid seeds from the seed suppliers every plant- 
ing season. Obviously they still had the option to go back to traditional variet- 
ies, but government technicians promoted the hybrid varieties aggressively and 
extended highly subsidized credit to the farmers who used them. So the use of Fl 
hybrids among corn farmers grew. 

As more farmers abandoned their traditional corn, these varieties became 
scarce and gradually disappeared. Commercial hybrid corn varieties eventually 
dominated the seed-corn market, the way the high-yielding varieties did among 
rice farmers — but with a difference. Seed buying had been an occasional purchase 
in the past, when seeds produced their own kind, but hybrids led to repeat sales, 
season after season, turning seeds into highly profitable commodities. 

As the seed business became more profitable, giant agrochemical firms began 
buying up the seed companies that had established themselves in the market. A 
similar corporate trend toward Fl hybrids emerged in the vegetable sector and, 
later, in the rice sector, a trend that continues today. 7 

Fl hybrids mark the beginning of corporate efforts to gain full control over seeds, 



UNDERMINING ABUNDANCE 255 



especially in major staple crops and vegetables. They also represent the first tech- 
nology in agriculture explicitly meant to end the farmers' age-old practice of saving 
part of their harvest to use as seed in the next planting season. This counterproduc- 
tive technology strikes at the very heart of sustainability and the seed commons. 

Commercial seed breeders took care that nonhybrid varieties would remain 
under their control, too. Their demand for exclusive rights over varieties that 
they developed eventually gave rise to the 1961 Convention for the Protection of 
New Varieties of Plants. This convention defined plant breeders' rights, mandated 
plant-variety protection, and established an international union, the UPOV, to 
work for plant breeders' interests. As countries acceded to UPOV agreements, they 
moved to adopt counterproductive national seed laws that limited the freedom of 
farmers to exchange seeds or to sell them. Subsequent UPOV agreements (in 1972, 
1978, and 1991) became more and more restrictive of farmers' rights. 8 The result was 
a two-pronged offensive against seed saving and exchange: promotion of the tech- 
nology of hybrids and new laws and international agreements restricting farmers' 
options over seeds. 

In the early 1980s, seed companies learned to modify plant genomes directly 
through genetic engineering. 9 Then they patented the modified genes, using the 
patent system — originally meant for industrial inventions and designs — to claim 
exclusive rights over seeds and plants with the patented genes. 10 This new weapon 
in the growing corporate arsenal of counterproductive practices was even more 
restrictive than plant-variety protection: The novelty of the technology itself now 
justified excluding everyone by law from using patented seeds unless they paid 
some kind of royalty or technology fee. 

The first commercially successful applications were soya and canola plants that 
incorporated herbicidal resistance and corn plants that incorporated pesticidal tox- 
ins. For the first time, seed companies held the power to sue farmers who saved 
the seeds of these crops and planted them in a subsequent season, simply on the 
strength of the patents they held over the genes incorporated in these seeds. 

Genetically engineered corn was also a poisoned pill, engineered to produce a 
modified version of a pesticidal toxin from the soil bacterium Bacillus thuringiensis. 
Organic farmers had used Bacillus thuringiensis for decades to control corn pests, 
prudently spraying the cultured bacteria only if pest damage reached significant 
levels. When the Bacillus thuringiensis gene was inserted into the corn plant, the 
resulting Bacillus thuringiensis corn now expressed the toxin throughout the plant's 
life, making it more likely for Bacillus thuringiensis resistance to develop rapidly 
among the target pests and sabotaging a resource that organic farmers — the nem- 
esis of the agrochemical/genetic-engineering industry — had used for decades. 

Counterproductive technologies now in the pipeline are taking to higher levels 



256 




Campaigning material produced by 
Progressio (www.polyp.org.uk/Progressio; 
www.progressio.org.uk). 



the bizarre goal of attacking natural abundance to create artificial scarcity in agri- 
culture. This opens a market for substitute products and leads to a supply sys- 
tem completely under corporate control through various technological and legal 
mechanisms. 11 

The precursor of these technologies is the "Terminator Technology," which 
genetically modifies plants to make their seeds sterile, ending the 350-million- 
year-old process of reproduction through seeds. Truly, it is the "death of birth." 12 
U.S. patents were granted, though commercial applications seem a long way off. 
The real question was: Would farmers use them? The idea was so outrageous that 
its promoters backtracked for a while, trying to find a spin that would make their 
idea more publicly palatable. 

They soon found one. Engineered seeds lead to a seemingly intractable prob- 
lem: genetic contamination. Engineered soya and canola, which had survived 
despite herbicide applications, were showing up in places where they were nei- 
ther expected nor wanted — on farms that had used no engineered seeds, espe- 
cially organic farms where strict safety standards prohibit such seeds. So on the 
strength of their patent claims, Monsanto sued. The farmers insisted that they had 
used no engineered varieties. Yet some plants on their farms tested positive for 



UNDERMINING ABUNDANCE 



257 



Monsanto 's patented genes. Many farmers, intimidated by Monsanto's legal and 
financial muscle, paid the fines and suffered the consequences, such as losing their 
organic certification. However, in one celebrated case that dragged on for years, 
Canadian farmer Percy Schmeiser stood his ground and fought the legal battle to 
the end. The Canadian Supreme Court issued an ambiguous decision which each 
side interpreted as its victory. 13 Promoters of the Terminator Technology now say 
that their technology can prevent genetic contamination from engineered crops by 
further modifying these crops to produce sterile seeds. 

New ideas in the pipeline fine tune the concept further to allow finer-grained 
control of sterility. Known as genetic use-restriction technologies, these will 
enable the seed companies to control seed sterility in the field through external 
triggers such as chemicals — presumably patented, too. By spraying this chemi- 
cal on a genetic use-restriction-modified plant, the plant can be induced to turn 
its sterility (or fertility) on or off. Scarcity and abundance thus can be marketed 
under full corporate control. A similar technology can also be used for turning 
genetically engineered traits themselves on or off. 

The use of hybrids and genetic engineering have been justified in the interest 
of "feeding the world." Yet a U.S. Department of Agriculture study in 2006 found 
that 10 percent of U.S. adults and 17 percent of children occasionally went hungry 
for lack of food. 14 If they cannot even feed all Americans sufficiently, how can 
they feed the world? 

A VIRTUAL CORNUCOPIA OF SOFTWARE 

The same approach of attacking abundance in order to cause artificial scarcity and 
create a market for substitute products in a supply system under corporate control 
occurred in the domain of computer software via the intellectual property laws. In 
the 1980s and early 1990s, in many countries, for a very affordable fee, one could 
copy from computer shops almost any Apple or IBM PC software that was also avail- 
able in the United States. Students, new graduates, and enthusiasts bought cheap 
IBM clones and practiced basic computer operations, word processing, presentations, 
spreadsheet uses, database management, and programming. There was no Internet 
then— in the Philippines, a 64 Kbps connection ushered in the Internet in 1994— but 
it did not matter. A de facto software commons was maintained in computer shops 
and on electronic bulletin-board systems that made software quickly and efficiently 
available to students and computer enthusiasts. Many computer professionals today, 
who now form the backbone of their country's computer industry or who enjoy 
well-paying jobs abroad as overseas workers, regularly dipped into this cornucopia 
and acquired their computing skills thanks to the software abundance of that period. 



258 



Back in the United States, software developers tried various copy-protection 
schemes, from nonstandard disk formats to hardware dongles. 15 But the best 
minds of the U.S. software industry were no match for the resourcefulness of 
hackers and altruists who wanted to keep the abundance coming. Some U.S. com- 
panies even specialized in software that duplicated copy-protected software. Other 
software developers abandoned copy protection to gain a competitive advantage, 
and consumers responded favorably. Eventually, the U.S. software industry gave 
in and, except for some niche markets, abandoned technical copy-protection 
schemes altogether. 

Invoking copyright laws did not help much. Though software was legally pro- 
tected by copyright laws and international agreements, many countries did not 
take these seriously, preferring to let their citizens enjoy the abundance that then 
prevailed. People likewise knew that governments enforce laws selectively any- 
way, whether they are laws on the minimum wage, corruption, pollution, taxes, 
elections, or copyrights. In the eighteenth and nineteenth centuries, the United 
States itself was a center of piracy of British books and publications. Subsequent 
experiences in Japan, Taiwan, Hong Kong, and other countries and territories 
likewise showed that copying is a necessary stage in national development. Fur- 
thermore, the countries that complained most loudly about the piracy of their 
intellectual property were themselves most guilty of pirating intellectuals such 
as doctors, nurses, and engineers from the Third World. The latter was deemed a 
more malignant case of piracy because it took away the original and left no copy 
behind. Finally, how can a government clamp down on its citizens when commer- 
cial software is freely copied between government computers? 16 

Things began to change after the 1994 formation of the World Trade Organiza- 
tion (WTO). This global system adopted effective mechanisms to enforce its highly 
protectionist provisions on intellectual property. An international legal infrastruc- 
ture was gradually built that, combined with strong diplomatic pressures and eco- 
nomic threats, started to turn the tide for copyright holders. 

In the Philippines, a turning point occurred in 1998, when Microsoft chairman 
Bill Gates visited President Fidel Ramos. 17 Gates offered to recognize as legal all 
copies of Microsoft products installed in government computers. In return, Ramos 
promised to enforce copyright laws, now that the government's copies were 
"legal." The United States still needed to direct a whole series of economic, politi- 
cal, and diplomatic pressures on the administrations that followed Ramos's, but 
the days of software abundance in the Philippines appeared to be numbered. 

As copyright enforcement began in earnest, CDs, video CDs, and DVDs were 
introduced in the 1990s and early 2000s. For a while, the industry managed to pre- 
vent copying and to restrict the use of DVDs by geographical region. However, 



UNDERMINING ABUNDANCE 259 



this was eventually thwarted by a combination of dedicated hacking, the technical 
savvy of rising industrial giant China, and plain consumer freedom of choice. 

The Philippine case is probably typical: When illegal CD, video CD, and DVD 
discs began to circulate, rumors spread that these discs could damage the disc 
player. The original players made in the United States, Europe, or Japan were so 
expensive that owners would not risk damage from discs of unknown quality. So 
those who bought the original players stuck to expensive original discs and suf- 
fered under ridiculous geographic restrictions: DVDs sent home by U.S. -based or 
Middle East-based relatives were unreadable, and players they sent or brought 
home could not play locally available DVDs. 

Enter China. Cheap DVD players that could play discs from any geographic 
region and priced at one-fifth or less of their competitors flooded the Asian mar- 
ket, including the Philippines. Another rumor — perhaps apocryphal — began to 
circulate: that original DVDs might damage these players. Between China-made 
machines that played cheap, unauthorized discs and branded players that played 
only high-priced discs that were also geographically restricted, it was no contest. 
With the further entry of low-cost CD/DVD burners, duplicating these read-only 
discs became easy. 

So Asia remains a flourishing market of China-made DVD players and unau- 
thorized CDs and DVDs, creating a new abundance of cultural fare for Asians. 
Many of the DVDs are adult material or otherwise of doubtful cultural value. But 
most regular movies are available, too, as are, increasingly, movie classics and truly 
educational collections of documentaries from the Discovery Channel, National 
Geographic, and similar cable channels — software, too. In some countries, the 
materials are made more accessible to ordinary people by translations into the 
local language. 

To suppress the new abundance, special government police and private detec- 
tives from the United States now regularly conduct surprise raids not only against 
the disc vendors and distributors, but also against businesses, schools, computer 
shops, and Internet cafes that use unauthorized software. These highly disruptive 
raids have driven CD/DVD and software copying underground, where it flourishes 
unabated, thanks to cheap China-made disc burners. 18 

In the United States, another round of efforts against unauthorized copying 
was launched under the banner of digital rights management (DRM), consolidat- 
ing counterproductive technological and legal measures for finer-grained control of 
copying and access to materials in digital media and on the Internet. DRM includes 
content encryption, digital signatures, digital fingerprinting, digital watermarks, 
digital serial numbers built into central processing units and computer mother- 
boards, and miscellaneous authentication systems. They involve such concepts as 



260 



DDUJN 
UJITH DRIi 




Communist remixes for the people 
(CRFTP). 



*+>*2**\ 



conditional access systems, remote revocation of use rights, and other means to 
ensure that scarcity and abundance remain under tight corporate control. They may 
be aptly called digital use-restriction technologies, after their genetic counterparts 
for controlling seed reproduction, the genetic use-restriction technologies. 

The U.S. remains ahead in the development of digital use-restriction tech- 
nologies and genetic use-restriction technologies, having the most corporate 
interests to protect, especially in the information sector. The U.S. Digital Millen- 
nium Copyright Act now mandates and protects digital use-restriction technolo- 
gies themselves, making it illegal to construct devices that bypass or disable these 
technologies. Citizens' groups in the United States such as the Electronic Fron- 
tier Foundation and Public Knowledge are concerned about the impact of DRM 
and the Digital Millennium Copyright Act on privacy, political freedoms, and 
human rights. 19 

The increasing availability of high-quality free and open-source software, 
however, has pulled the rug from under the argument that creativity can be 
encouraged only by granting creators statutory monopolies through intellec- 
tual property rights. In the information sector, as well as in the agriculture sec- 
tor, the see-saw between abundance and scarcity, between markets and commons, 



UNDERMINING ABUNDANCE 



261 



continues through skirmishes on the technology front, in the legal arena, and, of 
course, in the market. 



CREATING ARTIFICIAL SCARCITY ELSEWHERE 

Counterproductive efforts to control abundance and produce scarcity have 
occurred in other fields, as well. Drug laws make medically effective herbal prepa- 
rations inaccessible to many. Ironically, herbs easily grown in backyards and com- 
munity gardens, whose preparations would be illegal if prescribed by traditional 
healers, are often the basis for very expensive patented drugs manufactured by 
pharmaceutical firms. 20 It is not a coincidence that many of these firms are owned 
by the same agrochemical companies that control the seed industry. 

Through misleading advertising and collusion with hospitals and medical pro- 
fessionals, formula milk companies have managed to undermine mothers' confi- 
dence in their own breast milk. This had led to a decline in breast-feeding in a 
number of Asian countries. 21 As mothers try substitutes, their production of milk 
slows down and eventually stops, creating a vast new market for formula milk. 

A traditional Filipino song about plants found around the hut, "Bahay Kubo," 22 
taught to every child in grade school, enumerates eighteen food plants that include 
legumes, greens, root crops, seeds, nuts, and spices. The song omits many more. 
Filipinos have become so fixated on Western foods and diets that they overlook 
the great variety of indigenous food sources, many of which simply grow untended 
like weeds in their backyards. The monoculture mindset treats these food sources as 
indeed weeds that must be suppressed. Razed by farm mechanization and the use of 
herbicides, most of them have now disappeared from people's backyards, from their 
diets, and from their consciousnesses, creating real food scarcity and malnutrition. 

Organic products are scarce and expensive because a system biased toward 
chemicals imposes on organic producers the burden of proof: detailed record keep- 
ing, testing, inspection, certification and labeling. What if, in accordance with the 
"polluter pays" principle, producers of chemically treated crops and foods, not 
organic producers, were required by law to keep detailed records of chemical treat- 
ments, get their products regularly inspected and tested by accredited laboratories 
for minimum residue levels, undergo third-party certification, and follow mandatory 
labeling requirements to identify to which chemicals and by what amounts their 
food products have been exposed? If this were so, the price tags of both organic and 
chemically treated foods would change dramatically in favor of organics. 

A low-power radio station that can serve a large community or a small town 
now costs only about as much as a laptop. Yet such stations continue to be a rar- 
ity, because most governments make it nearly impossible to meet all the legal 



262 



requirements to operate one. As communications expert and president of the 
World Association of Community Radio Broadcasters Steve Buckley writes, "it is 
the policy, legal and regulatory framework that remains the single most persistent 
obstacle" to such stations. 23 

Internet service providers continue to charge exorbitant rates for static Inter- 
net Protocol (IP) numbers, arguing that they are running out of these numbers. 
Yet by simply upgrading to IP Version 6, every person on Earth can be assigned 
hundreds of IP numbers each, with a lot more to spare. 

The sun cannot be hidden, suppressed, made illegal, or otherwise made scarce. 
Instead, this universal source of abundance has been largely ignored— intention- 
ally, it has been argued — as energy industries focus on energy sources easier to 
privatize and to control, such as fossil and nuclear fuels. 24 

These examples suggest that the phenomenon of abundance in the natural 
world and in human societies should not be taken for granted. We need to study it, 
learn its dynamics, and tap it for human good. 

ABUNDANCE IN THE AGRICULTURE AND INFORMATION SECTORS 

Creating abundance is a matter of reproducing a good over and over again until 
more than enough is available for everyone's need or even for everyone's capac- 
ity to consume. In nature, the tendency toward bountiful abundance is obvious, 
especially where seasonal variations highlight the contrast between abundance 
and scarcity. Prehistoric artifacts of fertility goddesses as well as harvest festivals 
and rituals still practiced today show the extent to which abundance has been rec- 
ognized and sought. 

Abundance is inherent in the reproductive processes of life. Natural abundance 
is simply life reasserting itself through the endless cycle of reproduction of its 
own kind by every life form. This is the wellspring of abundance in nature and in 
agriculture. The process is self-limiting, too. As every available ecological niche 
is filled up, species gradually form a food web and settle into a dynamic balance, 
with closed material cycles ensuring that the balance is maintained. This enables 
the processes of abundance to continue indefinitely. 

Abundance in the domain of information is different. Sharing information does 
not diminish or deplete it, but rather multiplies and enriches it. Shared information 
begets more information. The wellspring of information abundance is the inherent 
human desire to communicate, to seek information and knowledge, and to share 
them, an urge that gets more fully expressed as the cost of sharing goes down. 25 
The cost of reproducing electronic signals is now approaching zero. With digital 
technology, books, artworks, music, and video can now be stored in the same 



UNDERMINING ABUNDANCE 263 



format as software and databases, as a long string of binary values. From these 
ones and zeroes, with the right equipment and algorithm, an exact copy of the 
digital original or a faithful copy of the analog original can be reconstructed. Once 
stored digitally and made available in easily searchable form on a global network, 
an unlimited number of users may now get any number of exact copies of the 
work. Who cannot recognize the abundance of human knowledge, experience, and 
creative work made possible by the Internet? As more and more people discover 
its possibilities for sharing freely, the whole range of human skills, thought, and 
feeling is now being made available through this medium. 

From an information perspective, abundance in nature and in agriculture, 
which is driven by the inherent program within genetic information to reproduce 
itself, is constrained by material limits, because it must eventually express itself in 
terms of biomass. Information abundance, on the other hand, is of the nonmaterial 
variety. Thus, information goods offer the promise of practically unlimited abun- 
dance, constrained mainly by the limits of human creativity, the storage capac- 
ity of media, and the availability of electricity to power servers on the Internet 
twenty-four hours a day. 

WHO WANTS ABUNDANCE RESTRICTED — AN D WHY? 

Abundance helps to meet human needs and wants and should therefore be wel- 
comed. Who, then, could be interested in restricting it? As we have seen, attacks 
against abundance have been mostly initiated by business firms or by govern- 
ments. Where governments have undertaken these measures, however, they have 
done so at the instance of business firms, which in the final analysis have reaped 
the benefits of the government measures. 

Looking more closely at the logic of business firms, it is obvious that the imme- 
diate effect of restricting abundance is to reduce supply and increase demand. This 
in turn raises prices or keeps their levels high. If the costs of production change 
little or not at all and prices go up, profits go up. This is the logic behind corporate 
efforts to develop technologies and influence state policies that give them closer 
control over the abundance and scarcity of goods: to create the best conditions for 
maximizing profits. 

Indeed, restricting abundance may maximize profits, but may not necessar- 
ily be the best way to encourage creativity. Free and open-source software and 
farmer-bred plant varieties show that creativity can continue to flourish even 
without the attraction of monopoly earnings. 

Shouldn't this selfish end give way to higher societal goals? The economist's 
answer is that society's higher goals are indeed served when everyone pursues his 



264 



or her own self-interest in free competition with others. In fact, economists argue, 
the competitive pursuit of individual gain accomplishes overall social goals better, 
even if this was no part of the individual's intention, than when the individual con- 
sciously tries to advance society's higher goals. The idea that individual pursuit of 
self-interest not only leads to but is actually the best path toward overall social good 
became the moral basis for capitalist society. This was programmed into business 
firms as an urge to maximize gain, and they do so by controlling abundance and 
scarcity in their favor. This is the driving force behind restrictions on abundance. 

Because individual human beings are a complex bundle of urges, emotions, and 
motivations who often act irrationally (that is, regardless of self-interest) from 
an economist's perspective, corporations are the ideal economic agents, pursu- 
ing nothing but maximum gain for themselves based on the economic theory of 
laissez-faire capitalism. 26 They are therefore driven to undermine abundance and 
create artificial scarcity as an unintended, but logical consequence of their inter- 
nal programming, creating a modern class of rentiers who accumulate wealth by 
charging fees for access to the resources they control. 27 

Viewed more broadly, economics has always assumed a condition of scarcity 
and defined its goal as the efficient allocation of scarce resources relative to unlim- 
ited human wants. Nowhere does abundance figure in the definition or goals of 
economics. Practically all economic textbooks are premised on scarcity. Check any 
index: "Scarcity" will be found in the early pages — in the first chapter, probably — 
and "abundance" will be missing. In the classic introductory textbook Economics, 
Paul Samuelson and William Nordhaus write on page 2: "At the core, [economics] 
is devoted to understanding how society allocates its scarce resources. Along the 
way to studying the implications of scarcity, economics tries to figure out the 1001 
puzzles of everyday life." 28 Some books might refer to "overproduction," suggest- 
ing an anomaly to be avoided or corrected. Misunderstanding abundance as over- 
production logically leads to counterproductive measures restricting abundance, a 
misapplication of concepts developed under assumptions of scarcity. 

Yet once we open our minds, we should see abundance all around us. Solar 
energy has been with us from the beginning. So have clean air and water, plants 
and animals, soil life, forests, and the astounding variety of life on Earth, now 
threatened. Since the Internet emerged, we have also seen an extraordinary abun- 
dance of information and knowledge and no lack of people willing to share them 
freely. Just look at the World Wide Web, Yahoo!, Google, Wikipedia, YouTube, and 
all the lesser-known, but incredibly useful efforts to make information and knowl- 
edge freely available on the Internet. New technologies promise even more abun- 
dance: in bandwidth through fiber optics, in air time through spread-spectrum 
technology, and in storage through new media. 



UNDERMINING ABUNDANCE 265 



Protecting Our Commons 

Water, Forests, and other natural "commons" provide the 
necessities w"life. Shared stories, musk, and tnt>Medge enliven 
our cultures. Today, corporations aie trying to enclose tijese and 
olhet commons— or pytetreuize IJieiT costs onto them, 
out a movement is rnttniiiE momenhim to prated our 
commons tor generations to come. 
Snkutbtdu M Bout M*< 




YES! Magazine graphic, 2007 (WorldWatch Institute, Institute for Policy Studies, PDF with legends available at http://www. 
yesmagazine.org/article. asp? I D=i832#commonspdf). 



Clearly, abundance is as much a feature of the real world as scarcity is. To 
understand this blind spot of economics and harness it fully for the human good, 
we need to construct theories of abundance to complement the theories of scarcity 
that dominate economics today. In fact, economists who talk of "relative scarcity" 
only need a minor leap of logic to recognize "relative abundance." After all, a glass 
that is half empty is also half full. 

CONSTRUCTING A THEORY OF ABUNDANCE 
CONSIDER THE VARIATIONS IN ABUNDANCE 

It can be precarious (with collapse imminent), temporary (lasting less than a life- 
time), short term (lasting a few lifetimes), medium term (lasting many lifetimes), or 
long term (lasting longer than human existence). It can be relative (enjoyed by a 
limited number), local (confined to a specific area), or universal (accessible to all). 
The abundance of solar energy and other energy forms associated with it, such as 
hydro, wind, and wave energy, is obviously long term. Solar energy is universal, 
while hydro, wind, and wave energy are more local. Coal's abundance is medium 



266 



term, if the estimates are correct that the world's reserves may last for several hun- 
dred years more (that is, for many human generations). Oil, which is perhaps good 
for another generation or two at current extraction rates, is short term. In addi- 
tion, fossil-fuel abundance is relative, because it is not accessible to all, but only to 
large firms with enough financial, technical, and human resources. While universal 
abundance can have free and open access, other forms may need some kind of 
management. Those who depend on local resources may need to restrict or even 
exclude outsiders. Extraction rates may need to be regulated. Moratoriums may 
even have to be imposed on threatened resources. The ultimate goal of any man- 
agement regime should be to ensure against any failure of abundance by pursuing 
the following specific goals. 

MAKE THE RESOURCE ACCESSIBLE TO A GREATER NUMBER OF PEOPLE- 
IDEALLY, TO ALL 

This is merely a restatement of the goal of social justice. Potable water, for 
instance, is so important to human survival that this goal should be paramount for 
this resource, whether it is abundant or not. For water — and for land, as well- 
Gandhi's observation rings true: "There is enough in the world for everyone's need, 
but not for everyone's greed." These resources can become abundant for all or 
scarce for many, depending on how they are managed. In a country such as the 
Philippines, land seems scarce to the millions who do not own a home lot, because 
the ownership structure allows a few to own thousands of hectares of land. Agrar- 
ian reform is, in effect, an effort to keep land abundant for every rural household 
that is willing to farm land. Some have also argued that family-size farms can be as 
productive and efficient, if not more so, than huge, corporate-held tracts. 29 

MAKE SURE THE RESOURCE WILL LAST FOR GENERATIONS, 
PREFERABLY INDEFINITELY 

This means turning limited, temporary or short-term abundance into long-term 
abundance. This is also a restatement of the goal of sustainability. Rain forests, for 
instance, have been providing countless generations of indigenous tribes every- 
thing they have needed for survival. At current rates of depletion, however, our 
generation has turned rain forests into a short-term or temporary resource that will 
be gone in a few generations, if not within our generation. Economists should be 
familiar with the difference between income and capital, between natural-resource 
stocks and flows. In the rain forest case, ensuring long-term abundance means lim- 
iting the consumption of forest products to the natural income we get out of the 
forest and refraining from eating into the capital stock. Strategies for managing 
nonrenewable resources or information resources would of course be different. 



UNDERMINING ABUNDANCE 267 



BUILD A CASCADE OF ABUNDANCE 

Abundance in one sector (or of one good) can help create abundance in another 
sector (or of another good). The food chain is a good example of abundance at 
one level (solar energy) supporting abundance at the next level (plants), which 
supports abundance at a higher level (herbivores), and so on. By building linkages 
among farm components, permaculture teaches how one type of abundance can be 
made to support another through conscious design. 30 A similar cascade occurs on 
the Internet, which supports the Web, which in turn supports search engines and 
new applications such as wikis and blogs, one abundance building on another. The 
sun is a flexible energy source that can provide, through collectors and concentra- 
tors, a wide range of temperatures to match various end uses. By tapping it more, 
industry can harness potentially huge amounts of energy for various productive 
activities, opening up possibilities for creating abundance in many other sectors. 
Photovoltaic cells made from silica, also an abundant resource, can transform sun- 
light into cheap electricity for industrial, commercial, and home use. This can make 
viable the electrolytic extraction of hydrogen and oxygen from water, another 
abundant resource. These can be stored and later used in fuel cells, holding the 
promise of a pollution-free, hydrogen-based economy. 

Most computer equipment, which is silicon-based, such as photovoltaic cells, 
has either been halving in price or doubling in capacity every few years or so. 
Liquid-crystal-display projectors now sell for a fifth of their price ten years ago. 
If photovoltaic cell prices follow suit, perhaps due again to China's entry into the 
global marketplace, we can look forward to a cascade of solar-based abundance 
in the future. 

Eventually, we should be able to recognize the conditions that lead to abundance 
and then learn how to create more abundance. We already have a rough idea how 
abundance happens in nature, in agriculture, and in the information sector. We sim- 
ply need to nurture the forces that generate such abundance. One challenge is how 
to emulate ecological processes such as the cyclic loops of nature to create a similar 
material abundance in the industrial sector without disrupting natural cycles. 

DEVELOP AN ETHIC THAT NURTURES ABUNDANCE 

To manage abundance well, its community of beneficiaries must adopt a behav- 
ioral rule set and corresponding enforcement mechanisms. It is desirable eventu- 
ally to turn this rule set into a mind set, similar to Aldo Leopold's land ethic and 
Sandra Postel's water ethic, 31 that is, into an ethic that makes the other goals of 
social justice, sustainability, cascading abundance, and dynamic balance second 
nature to all. 



268 



ATTAIN DYNAMIC BALANCE 

In a finite world, material abundance cannot grow indefinitely. Nature shows us 
how abundance can instead be sustained indefinitely through a dynamic balance 
(a harmony) of abundant elements connected in closed material cycles. Citing per- 
maculture again as example, a similar balance can be attained in a farm by model- 
ing it after long-lived, self-regenerating ecological systems to design what are, in 
effect, forests or ponds of food and cash crops. After we learn to design similar 
closed loops in industry, we can bring this sector back into harmony with the rest 
of the living world. 

At least four major sources of imbalance threaten our world today. The first 
is the current reliance on a nonrenewable energy base. Although the size of the 
world's fossil fuel stock may be debatable, its rate of exploitation will sooner or 
later surely fail to keep up with rising demand, causing major economic disruptions. 

The second source of imbalance is the linear production processes of the indus- 
trial sector. The industrial sector uses raw materials from nature and agriculture 
and turns them into finished products. Whether these goods are durable, reus- 
able, or disposable, they are eventually thrown away as waste. Unlike the closed 
cycles of nature, this is a linear process that consumes biomass, dead matter, and 
energy at the input end and that produces synthetic, often nonbiodegradable and 
even toxic goods and wastes at the output end. This one-way transformation con- 
stantly disrupts the dynamic balance and closed loops of the natural world. Even- 
tually, the finished goods reach the end of their useful life — quickly, if they are 
disposable or one-time-use goods — and become wastes, too. If these wastes enter 
the body of any living organism, including humans, they can seriously disrupt its 
health. In effect, fueled by an ideology of accumulation, industry is transform- 
ing the natural world into a synthetic and ultimately unlivable place. The solution, 
as Barry Commoner proposed, 32 is to turn linear industrial processes into closed 
material loops and recycle all industrial wastes as well as goods that have reached 
the end of their useful lives back into the production process. 

The third source of imbalance is the unchecked growth of the human popula- 
tion. For most biological forms on Earth, at least one more life form exists — feeder, 
predator, or parasite — that limits the former's population and keeps it in balance 
with the rest of the living world. This food chain creates an energy pyramid that is 
wide at its base, where plants directly tap solar energy, and that becomes narrower 
toward the top, as it tapers from herbivores and to predators. There is one excep- 
tion: The human population at the apex of this biological food chain has grown 
disproportionately larger than the rest of the pyramid, appropriating to itself 
much of the Earth's livable habitat as well as its production of energy and biomass. 
With no natural enemies to limit our population effectively, we have to discover 



UNDERMINING ABUNDANCE 269 



other means to do so. (Perhaps the global drop in sperm counts is nature's own 
response?) Because the growth of the human population involves the fundamental 
biological urge to reproduce one's kind, the issues are complex, and the debates 
rage on. But solutions we must find. 

The fourth source of imbalance that threatens our world today is the unlim- 
ited corporate drive for profit. The business firm is programmed to maximize its 
return on investment — no more, no less. This simplistic programming as a profit 
seeker driven purely by self-interest has made it better adapted than the individ- 
ual human being to the world of markets, competition, and capital accumulation 
that economists have defined the world to be. Being better adapted, corporations 
have become the dominant economic player in our world. Because under our legal 
systems corporations are legal persons distinct from their board of directors and 
shareholders, corporations have now acquired a life of their own. They can feed 
themselves, regenerate, reproduce, make plans in pursuit of their internal urges, 
and hire people to execute these plans. Using their superior economic power, they 
have also acquired political power and taken over media and education. They 
have become so well entrenched and their accumulated economic, political, and 
cultural powers have become so extensive that if they were counted as a distinct 
species, they would now be considered the dominant species on this planet, hav- 
ing managed to domesticate the great Homo sapiens itself. As corporations relent- 
lessly pursue their internal programming, seeking profits without limit, they are 
causing huge global imbalances that threaten the survival not only of human 
societies, but of many other species, as well. Displacing these runaway automa- 
tons from their dominant status and reprogramming them with more benign goals 
(Isaac Asimov's laws of robotics, 33 for instance) has become the greatest challenge 
of our era. 



RELIABILITY AND THE PRECAUTIONARY PRINCIPLE 

Corporations maximize their gain (profits) through efficiency and scale. Another 
concept, however, could be more important than efficiency. This is the concept 
of reliability, the quality of "being available when needed," of "lasting for a long 
time." This common concept may further clarify how the two goals of social justice 
and sustainability can be met. 

When abundance fails and becomes unavailable to some sectors of society or to 
subsequent generations, this failure is a loss of reliability. Reliability is measured 
in terms of mean time before failure (or mean time between failures). Improving 
reliability means reducing the risk of failure. A more familiar formulation is the 
"precautionary principle." 



270 



To prevent abundance from turning into scarcity, maximizing gain (efficiency) 
should give way to minimizing risks (reliability) from threats to the sources of 
abundance. This suggests a risk-averse strategy, which precisely is a strategy com- 
mon among ancient tribes and traditional societies. Perhaps, they have learned over 
centuries that their goal was to preserve the natural abundance that sustained them 
and to minimize any risk that may cause such abundance to end. 34 Under condi- 
tions of abundance, the ideal economic agent is not the gain maximizer compet- 
ing out of self-interest and incidentally making markets efficient, but the risk 
minimizer cooperating with others intentionally to make their common resources 
more reliable. 

Often, a resource that a community considers optimally used because the risk 
of failure has been minimized will appear underutilized to a corporation because 
gain is not being maximized. This is probably the cause of resource conflicts in 
many areas, especially where corporations intrude into community resources. 

To get optimum yield, gain maximizers keep increasing production toward the 
"carrying capacity" of the resource. However, imperfect knowledge, uncertainties, 
and lags inherent in natural systems can lead to oscillatory behavior and over- 
shoots. Exceeding carrying capacity, even temporarily, can trigger a major mind- 
set shift that can lead to a race that ends up in a breakdown of the commons. 

Guided by the precautionary principle, risk minimizers focus not on carrying 
capacity, but on the impact of extraction on the resource. Individuals evaluate the 
negative impact as risk to their perpetual source of abundance — risk being the 
probability of failure times the present value of their income stream that would 
be lost — and weigh this against their own need. This self-regulating mechanism, 
where individuals limit their gain as they minimize the risk of losing a perpetual 
source of abundance, can keep the system in equilibrium. Even pure self-interest 
should drive them to cooperate with others to make sure the rate of extraction 
stays well below carrying capacity, which represents a nearly 100 percent risk of 
failure. Should dire need push one to extract beyond acceptable risk, he or she will 
have to contend with the wrath of others, whose perpetual income streams are 
also being put at risk. Or perhaps everybody else will cooperatively chip in to help 
meet a member's dire need, given their common interest to protect the resource 
that gives each of them a perpetual income stream. 

ABUNDANCE CREATES COMMONS 

If we were to review history, and perhaps prehistory, as well, we would see that 
abundance has often led to the creation of commons. In communities that respond 
to abundance by treating it as a common pool resource, community members tend 



UNDERMINING ABUNDANCE 271 



to act cooperatively to manage the commons so that the goals of social justice and 
sustainability are met and the risk of failure in abundance is minimized. 

Commons management involves not only economic rules, but also cultural and 
political factors such as conscious community decisions, appeals to the common 
good, and the values of sharing, cooperation, altruism, and community spirit. It 
often relies not only on prices, but also on restrictions, prohibitions, and taboos. 
Ancient tribes and other traditional societies have evolved complex social norms 
of behavior and hierarchies of communal use and access rights that have served 
them well in managing abundance and the commons for many generations. Similar 
norms have likewise evolved among successful modern commons, such as free and 
open-source software and Wikipedia. 

Their institutions and methods for governing the commons have proved even 
more useful for threatened resources, as well as for resources that have actually 
become scarce, by helping meet the goals of social justice and sustainability. In a 
number of instances, fishing grounds and forest reserves have been nursed back to 
abundance, thanks to the proper management of these commons. 

Thus, a rich heritage of theory and practice in managing abundance and coping 
with scarcity exists and may be found in the literature of the commons. This heri- 
tage was overlooked for several decades by many after Garrett Hardin observed 
in 1968 that a "tragedy of the commons" ensues when rational gain maximizers 
exploit the commons in pure pursuit of self-interest. 35 This has led governments to 
take over these commons as state property or to turn them over to corporate inter- 
ests through privatization, often creating worse tragedies. What can be worse than 
the tragedy that befell Russia when the common wealth of its people — literally the 
product of their sweat, tears, and blood— became the private property overnight 
of party bureaucrats turned capitalists? Subsequent studies have since shown that 
Hardin's "tragedy" is by no means universal and that successful practices in man- 
aging the commons continue to serve many communities today 36 

Hardin's analysis of herders and a common pasture was too simplistic. Hardin 
argued that a rational herder would gain for himself one unit of the commons per 
additional head of cattle herded, and split with other herders the unit of damage to 
the pasture. He concluded that the positive net gain would drive every herder to 
keep adding heads of cattle to the pasture until the commons collapsed. Hardin's 
risk-blind herder does not take into account the risk to his own perpetual income 
stream created by each additional head of cattle he puts to pasture. A risk-wise 
herder, weighing the gain from each additional head against the increasing risk of 
losing his perpetual income stream, will stop adding heads before the probability 
of losing that income stream reaches 100 percent, which occurs as carrying capac- 
ity is exceeded. Every herder will get a clear signal as the risk increases, because 



272 



he will be getting less gain per unit effort as the pasture deteriorates. Here is a 
self-regulating system that requires no unrealistic assumptions, such as perfect 
knowledge or perfect competition. 

A foolhardy herder who needs the plus-one-unit gain badly enough may 
still insist on risking not only his own, but also everyone else's perpetual income 
stream. Since each one could, one day, face a similar situation of urgent need, they 
may eventually realize that it would be better for each herder to contribute a small 
amount to raise the increment. This suggests, as a long-term solution, a system 
of insurance or social security, a type of commons that reduces individual risk by 
pooling resources. 

CONCLUSION 

The following table shows how a focus on abundance creates a mind set that is 
orthogonal to one that focuses on scarcity: 



ABUNDANCE 

Commons 

Community 

Common good 

Cooperation 

Culture 

Balance 

Stewardship 

Minimizing risk 

Reliability 



SCARCITY 

Markets 

Corporation 

Self-interest 

Competition 

Commerce 

Growth 

Exploitation 

Maximizing gain 

Efficiency 



The three major sectors of the economy — the agriculture, industrial, and infor- 
mation sectors — present us with a complex mix of markets and commons of scarce 
and abundant goods. We need to tap into the vast pool of historical as well as cur- 
rent insight, knowledge, and experience to develop a modern theory of political 
economy that can cope with both abundance and scarcity. 



UNDERMINING ABUNDANCE 



273 



NOTES 

1 Rachel Carson, Silent Spring (Boston: Houghton Mifflin, 1962). 

2 Kira Gould and Lance Hosey, Women in Green: Voices of Sustainable Design (Bainbridge 
Island, WA: Ecotone Publishing, 2007), p. 20. 

3 Francis Chaboussou, Healthy Crops: A New Agricultural Revolution (Charlbury, UK: Jon Car- 
penter Publishing, 2004). 

4 The International Rice Research Institute is a Philippines-based, Rockefeller-funded research 
center on rice breeding. See http://www.irri.org (last accessed April 22, 2009). For a com- 
prehensive critique of the institute's approach, see Nicanor Perlas and Renee Velvee, Oryza 
Nirvana? (Quezon City: Southeast Asian Regional Institute for Community Education, 1997). 

5 For a critique of the Green Revolution, see Andrew Pearse, Seeds of Plenty, Seeds of Want 
(Oxford: Oxford University Press, 1980). See also Vandana Shiva, The Violence of the Green 
Revolution: Third World Agriculture, Ecology and Politics (London: Zed Books, 1991). 

6 Mark Mikel and John Dudley, "Evolution of North American Dent Corn from Public to Propri- 
etary Germplasm," Crop Science 46, no. 3 (May-June 2006): pp. 1193-1205, available on-line at 
http://crop.scijournals.0rg/cgi/content/full/46/3/li93 (last accessed April 22, 2009). 

7 See for instance, Wayne Wenzel, "Syngenta Buys Garst," Farm Industry News, May 12, 2004, 
available on-line at http://farmindustrynews.com/news/Syngenta-buys-Garst; Matthew Dil- 
lon, "Monsanto Buys Seminis," Organic Broadcaster (March-April 2005), available on-line at 
http://www.newfarm.org/features/2005/0205/seminisbuy/index.shtml; and Carrey Gillam, 
"Monsanto to Buy Vegetable Seed Company," April l, 2008, available on-line at http://www. 
planetark.com/dailynewsstory.cfm/newsid/47728/story.htm (all last accessed April 22, 2009). 

8 See The Crucible Group, People, Plants and Patents: The Impact of Intellectual Property on 
Trade, Plant Biodiversity, and Rural Society (Ottawa: International Development Research 
Centre, 1994). 

9 "Top Awards for Scientist Who Developed the First Transgenic Plant," Pesticide Outlook, June 
2002, available on-line at http://www.rsc.org/delivery/_ArticleLinking/DisplayArticleFor- 
Free.cfm?doi=b205l76c&JournalCode=PO (last accessed April 22, 2009). 

10 See for instance, U.S. patents 4900676, 4970168, 5276268, 5312912, 5382429, 5503999, 5498533, 
5633434, 5648249, 6043409, 6130368, 6204436, 6495745, 6646184, 6791009, and 73H973, avail- 
able on-line via the U.S. Patent and Trademark Office Web site at http://www.uspt0.g0v/# 
(last accessed April 22, 2009). 

11 A thorough discussion can be found in Vandana Shiva, Protect or Plunder: Understanding 
Intellectual Property Rights (London: Zed Books, 2001). 

12 This term comes from Paul Hawken, The Ecology of Commerce (A Declaration of Sustainabil- 
ity) (New York: HarperCollins, 1993). 

13 E. Anne Clark, "So, Who Really Won the Schmeiser Decision?" Crop Choice 13 (June 2004), 
available on-line at http://www.plant.uoguelph.ca/research/homepages/eclark/pdf/sc.pdf 
(last accessed May 19, 2009). 

14 Food Research and Action Center, "Hunger and Food Insecurity in the United States," avail- 
able on-line at http://www.frac.org/html/hunger_in_the_us/hunger_index.html (last 
accessed April 23, 2009). 

15 A hardware dongle is a small device plugged into a computer that enables an application pro- 
gram to run. 

16 See a fuller discussion of these arguments in Roberto Verzola, Towards a Political Economy 



274 



of Information: Studies on the Information Economy (Quezon City: Constantino Foundation, 
2004), available on-line via a link at http://rverzola.wordpress.com/2008/01/26/towards-a- 
political-economy-of-information-full-text. 

17 See Philippine Greens, "Philippine Greens Protest the Visit of #1 U.S. Cyberlord Bill Gates," 
March 20, 1998, available on-line at http://www.hartford-hwp.com/archives/29/048.html 
(last accessed April 23, 2009). 

18 For a fuller discussion, see Alan Story, Colin Darch, and Debora Halbert (eds.), The Copy/ 
South Dossier: Issues in the Economics, Politics and Ideology of Copyright in the Global 
South (Kent, UK: University of Kent, 2006), available on-line at http://www.gutenberg. 
org/files/22746/22746-p/22746-p.pdf (last accessed April 24, 2009). See also Pradip Ninan 
Thomas and Jan Servaes (eds.), Intellectual Property Rights and Communications in Asia: Con- 
flicting Traditions (New Delhi: Sage Publications, 2006). 

19 Adam Thierer and Wayne Crews (eds.), Copy Fights: The Future of Intellectual Property in the 
Information Age (Washington D.C.: Cato Institute, 2002). 

20 See, for instance, Tiahan Xue, "Exploring Chinese Herbal Medicine Can Foster Discovery of 
Better Drugs," The Scientist 10, no. 4 (February 19, 1996): p. 9. 

21 Simon Montlake, "Milk Formula Goes on Trial in Asia," Christian Science Monitor, June 22, 
2007, available on-line at http://www.csmonitor.com/2007/0622/po5soi-woap.html (last 
accessed April 24, 2009). 

22 For an English version, see http://rverzola.wordpress.com/2007/i2/27/bahay-kubo-english- 
translation (last accessed April 24, 2009). 

23 Steve Buckley, "Community Radio and Empowerment," May 1, 2006, available on-line 
at http: //portal. unesco.org/ci/en/ files/22022/ll472542l5lSteve_Buckley.doc/Steve%2 
BBuckley.doc (last accessed April 24, 2009). 

24 See Ray Reece, The Sun Betrayed (Boston: Southend Press, 1979). See also Daniel Berman and 
John O'Connor, Who Owns the Sun? (White River Junction, VT: Chelsea Green Publishing, 
1997). 

25 For a full discussion, see James Boyle, Shamans, Software and Spleens: Law and the Construc- 
tion of the Information Society (Cambridge, MA: Harvard University Press, 1996). 

26 See David Korten, When Corporations Rule the World (West Hartford, CT: Kumarian Press, 
1996). 

27 How this happens in the information economy is discussed in Peter Drahos, with John Braith- 
waite, Information Feudalism: Who Owns the Knowledge Economy? (New York: New Press, 
2002). See also Verzola, "Cyberlords: Rentier Class of the Information Sector," in Towards a 
Political Economy, pp. 145-61. 

28 Paul Samuelson and William Nordhaus, Economics, 14th ed. (New York: McGraw Hill, 1992), p. 2. 

29 Peter M. Rosset, "The Multiple Functions and Benefits of Small Farm Agriculture in the Con- 
text of Global Trade Negotiations," Food First/The Institute for Food and Development Policy, 
September 1999, available on-line at http://www.foodfirst.0rg/files/pb4.pdf (last accessed 
April 25, 2009). For a comprehensive discussion of the sustainable agriculture approach for 
small farms, see P. G. Fernandez, A. L. Aquino, L. E. P. de Guzman and M. F. 0. Mercado (eds.), 
Local Seed Systems for Genetic Conservation and Sustainable Agriculture Handbook (Los 
Banos, Laguna: University of the Philippines College of Agriculture, 2002). 

30 Permaculture (permanent agriculture) is a system of designing farms that minimizes non- 
renewable energy requirements, ensures the continuous cycling of biomass, fills as many 



UNDERMINING ABUNDANCE 275 



ecological niches as possible with food and cash crops, and provides for a wilderness area 
within the farm. See Bill Mollison, Permaculture: A Designer's Manual (Hyderabad: The Dec- 
can Development Society, 1990). 

31 "A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic 
community. It is wrong when it tends otherwise." Aldo Leopold, A Sand County Almanac 
(New York: Ballantine Books, 1966). A water ethic would "make the protection of water eco- 
systems a central goal in all that we do." Sandra Postel, Last Oasis: Facing Water Scarcity 
(New York: W. W. Norton, 1997). 

32 Barry Commoner, The Closing Circle: Nature, Man, and Technology (New York: Bantam Books, 
1971). See also Barry Commoner, Making Peace with the Planet (New York: Pantheon Books, 
1990). 

33 Isaac Asimov's Three Laws of Robotics are: a robot may not injure a human being or, through 
inaction, allow a human being to come to harm; a robot must obey orders given to it by human 
beings, except where such orders would conflict with the First Law; a robot must protect its 
own existence as long as such protection does not conflict with the First or Second Laws. Pro- 
gramming firms with these robotic laws would have made corporations easier to control. 

34 For a fuller discussion, see Verzola, Towards a Political Economy of Information, pp. 170-90. 

35 Garrett Hardin, "The Tragedy of the Commons," Science 162, no. 3859 (December 13, 1968). 

36 Elinor Ostrom, Thomas Dietz, Nives Dolsak, Paul Stern, Susan Stonich, and Elke Weber (eds.), 
The Drama of the Commons (Washington, D.C.: National Academy Press, 2002). See also Eli- 
nor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cam- 
bridge: Cambridge University Press, 1990). 



276 



The Man Who Mistook His Wife for a Book 



Lawrence Liang 



A number of critical interventions in debates on the impact of intellectual property 
on knowledge and culture are framed by a critique of the expansionist tendency of 
the global intellectual property regime. There are calls for an institutional overhaul 
of the intellectual property regime to make it more equitable and to enable greater 
access to knowledge and culture. What seems to be missing in these debates in the 
registers of development discourse or in the mandates of liberal reformist agendas 
are epistemological challenges to intellectual property. The success of intellectual 
property as a concept perhaps lies more in its ability to have established itself in a 
universally intelligible narrative concerning what constitutes selfhood and owner- 
ship than in specific instances of its enforcement within countries. Ideas of prop- 
erty are centrally tied to larger ideas of personhood and hence are far too impor- 
tant to be left to policy makers. 

The globalization of intellectual property is hence as much about the creation 
of a mind-set that sees all forms of creative activity as property as it is about uni- 
versal norms. It also articulates a particular idea of authorship tied closely to the 
idea of an individual's relation to the world of knowledge and culture. This paper 
argues that unless we understand the epistemological challenges posed by the idea 
of intellectual property, we are left with limited corrective measures to a system 
that threatens to destroy the diversity that marks our relation to the world of 
ideas and consequently our relation to others and to ourselves. 

I will be examining the link between ideas of personhood and self that under- 
lies Western liberal property regimes. Philosophers such as John Locke played a 
key role in creating a link between the "self" and "ownership ."This paper examines 
alternative ideas of the self within Western and non- Western metaphysics and 
argues that a relational conception of the self helps us rethink our assumptions 
about property and personhood, especially in relation to the world of knowledge 



277 




Extract from Keith Aoki, James Boyle, and Jennifer Jenkins, Bound by Law? (Tales from the Public Domain) 
(Durham, NC: Center for the Study of the Public Domain, 2006) (available at http://www.law.duke.edu/ 
cspd/comics/; License: http://creativecommons.0rg/licenses/by-nc-sa/2.5/). 



and culture. The political implications of such a shift are many and can be best 
seen in the normative aspirations of the access to knowledge movement, which 
attempts to destabilize the language of exclusive rights and property and to focus 
on the ideas of responsibility and obligation as part of the ecology of knowledge. 

My account of the puzzle of property and personhood in relation to intellectual 
property begins with what seems to be a standard copyright dispute. In 1999, three 
members of the 1980s band Spandau Ballet sued Gary Kemp, the fourth member 
of the band, for not sharing the royalties to the band's songs, which they claimed 
they had jointly authored. 1 Kemp claimed that he was the sole author of the songs 
and that he was not obliged to pay them any share of the royalties. The aggrieved 
members of the band argued that while Kemp presented the "bare bones" of a tune 
to the other band members, the band went through a process of jamming, whereby 
"someone started to play and the rest joined in and improvised and improved the 
original idea" — in other words, that the creation of the songs was a collaborative 
process and that the songs should be considered a work of joint authorship. 2 

The court analyzed the manner in which music was created and, while acknowl- 
edging that there was a collaborative process that went into the composing of the 
music, they held that it was Kemp who should be considered the sole creator of the 
songs. They argued that Kemp "developed, and fixed in his musical consciousness, 
the melody, the chords, the rhythm or groove, and the general structure of [each] 
song from beginning to end" before playing it to the band and inviting the band as 
a whole to rehearse its performance as an ensemble with a view to recording it. The 
judge accepted that the other band members' vocal and instrumental performances 
were skilful individual interpretations of the musical works that Kemp had com- 
posed. However, he held that an interpretation of a musical work was not the kind 
of contribution that the law of copyright could accept as sufficient to constitute 
the interpreter an author of that work: "the contributions need to be to the cre- 
ation of musical works, not to the performance or interpretation of them." 3 

The Spandau Ballet case illustrates an interesting and in many ways typi- 
cal problem that copyright law faces in its adjudication of claims of authorship 
and creativity. My interest in the case emerges from the ways in which the case 
attempts to deal with the questions of collaboration, property, and personhood. In 
the Spandau Ballet case, there seem to be three distinct kinds of claim made about 
the relationships involved in these questions: Kemp's claim (affirmed by the court) 
that the songs were written solely by him and hence are his own songs (a claim 
based on the songs' relationship to the self), the claim that as a result, Kemp owns 
the songs exclusively (a claim based on his relationship to the work), and the claim 
that as an owner, Kemp is entitled to exclude others from a share in the royalties 
arising from the songs (a claim based on his relationship to others). 



THE MAN WHO MISTOOK HIS WIFE FOR A BOOK 279 



At the heart of the problem, and of our understanding of the philosophical 
divide that exists in debates on intellectual property, lies the issue of property 
and personhood. The language of property narrates the individual as a proprietor 
of one's own person, and it gives rise to a theory of personal identity in which the 
self and what it owns are often treated as being the same, or at least as existing 
within the same orbit of meaning, whereby the one can be used interchangeably 
with the other. This discourse flows directly from classical liberal political theory, 
in which every individual is considered to be the proprietor of his or her own 
person. 

LOCKE AND THE EQUATION OF SELF AND OWNERSHIP 

The philosopher who is most often identified with this theory of property and 
the self is of course John Locke. Many of our ideas of selfhood emerged in the 
seventeenth and eighteenth centuries, and in many ways, the question of personal 
identity was the prime question that motivated Locke's inquiries. His theories set 
the stage for the philosophical and juridical establishment of what C. B. Macpher- 
son calls the theory of "possessive individualism." 4 The question of personal iden- 
tity troubled many philosophers before Locke, but it was with the publication 
of Locke's Two Treatises of Government and An Essay Concerning Human Under- 
standing that the most coherent argument linking theories of identity to prop- 
erty emerged. It is interesting to note that Locke initially did not have a chapter 
on consciousness and identity in the Essay, and it was at the suggestion of Wil- 
liam Molyneux that he included a section on the principium individuationis to the 
second edition. 

Consider, for instance, the following statement in Locke's journals: "Identity 
of persons lies not in having the same numerical body made up of the same par- 
ticles, nor if the mind consists of corporeal spirits in their being the same. But in 
the memory and knowledge of one's past self and actions continued on under the 
consciousness of being the same person whereby every man own's himself." 5 For 
Locke, consciousness is a question of mental operations that appropriate the self 
to itself, where to appropriate means to identify with or to make a property of. 
The use of the word "own" is both as an adjective (as in "my own thought") and 
as a verb (to confess). The relationship between the self and the own is there- 
fore dependent on a circularity whereby ideas of identity and identification on 
the one side and appropriation on the other continuously exchange their func- 
tion and become virtually equivalent. The relationship between the self and the 
own is dependent on a self-fulfilling prophesy in which "what I can consider as 
me, myself, is my self and 'my' self is some 'thing' that I own, or that I must own 



280 



(confess) is mine, was done or thought by me, has become my own because I 
appropriated it to me by doing it or thinking it consciously" 6 

This circularity also informs much of Western metaphysics, in which conscious- 
ness sets the criteria of personal identity and of a political theory in which the 
possessive individual is generalized or universalized because any individual ought 
to be considered as proprietor of his or her own person or as a self-owning per- 
sonality to the extent that he or she is such a proprietor. In a fascinating rereading 
of Locke, Etienne Balibar, citing Jacques Derrida, claims that the reason for this 
equivalence is the "metaphysics of (a)propriation," in which linguistic expression 
is provided by the circularity of meanings between "my self" and "my own," or the 
fact that you can explain self only by referring to what is your own and your own 
only by referring to yourself. This is at the heart of European psychological, moral, 
juridical, and political individualism and on the surface of it, it does seem that my 
self and my own are one and the same thing. 

The circular relationship between the self and the own appears at first glance 
to pose a problem of translatability For instance, if you attempt to translate the 
terms "self" and "own" into French, while "self" can more or less accurately be 
translated as moi or so/, the closest French word for "own" is le propre or propre, 
with its very close relation to property. The pair "self"/"own" and moi/propre, 
however, cannot be considered as accurate equivalents. One could blame the inher- 
ently flawed project of translation, with the problem seen as being on a par with 
other conceptual/linguistic problems that have plagued philosophers involving the 
precise meaning of a word in different languages. However, Balibar sees it as a far 
more serious problem. He wonders if it is the easy semantic coincidence available 
in English that enables the easy linkage of the self and the own that allows for 
Locke's theory of identity and property. 

To test Balibar's hypothesis, I attempted to look for an equivalent in Hindi 
of the ideas of "my self" and "my own." The closest translation that I could find 
emerges from the phrase "mere apne" which is the equivalent of "my own." The 
word apna refers to the idea of owning, but not merely in terms of possession. 
The phrase "mere apne" could refer to something as being mine, but at the same 
time, this claim is not limited only to an assertion of delineation and exclusion, but 
refers instead to a certain idea of relationship of proximity between the self and 
an other. The word apnaapan, for instance, translates as "closeness," so that "mere 
apne" is a reference to the idea of a relational proximity. 

This is interestingly mirrored by Balibar's reading of "By the Fireside," a poem 
by Robert Browning: 7 

My own, confirm me! If I tread 
This path back, is it not in pride 



THE MAN WHO MISTOOK HIS WIFE FOR A BOOK 28l 



To think how little I dreamed it led 
To an age so blest that, by its side, 
Youth seems the waste instead? 

Balibar initially reads the poem as being addressed to oneself, or as self-inter- 
pellation, and as an appeal to memory, but realizes his mistake when he encoun- 
ters the next lines and then a subsequent stanza: 

My own, see where the years conduct! 
At first, 'twas something our two souls 
Should mix as mists do. . . . 
My perfect wife, my Leonor, 
Oh heart, my own, oh eyes, mine too, 
Whom else could I dare look backward for, 
With whom beside should I dare pursue 
The path grey heads abhor? 

So what might be only a linguistic dilemma — is this an address to a self or an 
address to an other? — leads us back to the foundational question of the nature of 
self and subjectivity that is invoked when we speak of something being "our own." 
The idea that "my own" could possibly refer not merely to a sovereign claim of the 
individual self but also to relationality involving others conflicts with the world of 
property norms in which a to say "my own" is an act that makes a claim of abso- 
lute possession, that declares the ability to exclude others, and that asserts the 
legal ability to alienate what you own. 8 

RELATIONAL PROXIMITIES AND THE REWORKING OF THE SELF 

Thinking of our relation to the world of knowledge and culture via the trope of 
proximity enables us to rethink our relations to our work, to our selves, and to 
each other, not as distinct sets of legal relations bound together by the idea of 
rights, but as a continuum that blurs the boundaries between rights, obligations, 
and relationalities. Consider, for instance, the following statements, each of which 
refers to certain claims that sound deceptively similar, but that in fact exist in very 
different ethical and legal registers. 

This is my pen. 
This is my friend. 
This is my poem. 

The first statement refers to the classical conception of the claims of pos- 
sessive individualism, in which the self and the owner exist as interchangeable 



282 



concepts. This is "my" pen, and hence I own it. The second statement takes us into 
the domain of relational proximities, where an assertion of someone being your 
friend does not lead to an assumption, either of ownership or of exclusion, but 
into the domain of the closeness/apnaapan that you share with your friend. Thus, 
the statement "This is my friend" could well be mapped in terms of its presence in 
Hindi as "mere apne," with a sense of "owning" that leads to an understanding of 
how close you are to someone. 

The third statement is perhaps the most deceptive, because to assert "This is 
my poem" within the social imaginary of intellectual property is to make a claim 
that sounds very much like "This is my pen," whereas in fact, it might be more 
accurate to think of its claim as the same as "This is my friend." And it is in this 
liminal space where poems look like pens that friendships get lost and property 
takes over. 

What is it about the logic of property and the language of rights in the domain 
of intangibles that creates this act of misrecognition? The ontological character of 
information, knowledge, and cultural practices provide them with an unbounded- 
ness, and very much like the world of social relations, they are not exhausted by 
acts of circulation. When was the last time we heard of the problem of someone 
having too many friends? The imposition of strictly defined norms of property 
rights, with its imagination of legitimate rights holders and trespassers, enforces a 
transition that converts the possibilities of friendship into acts of hostile takings. 9 

The role of intellectual property and the language of rights creates a normativ- 
ized and legalized domain in which our experience of social relations, with their 
attendant complexities, is unavailable to us except as juridically defined sets of 
relations. It would be useful at this stage for us to turn to our title character, who is 
derived from one of Oliver Sacks's case studies, that of "Dr. P," the man who mis- 
took his wife for a hat. Sacks informs us that Dr. P suffers from a peculiar neurolog- 
ical disorder that affects his ability to retain visual recognition while retaining this 
ability to discern abstract figures, leading to a series of misrecognitions in which he 
is unable to distinguish his foot from his shoe and his wife from a hat. Sacks writes: 

By and large, he recognized nobody: neither his family, nor his colleagues, nor his 
pupil, nor himself. He recognised a portrait of Einstein because he picked up the 
characteristic hair and moustache; and the same thing happened with one or two 
other people. 'Ach, Paul!' he said, when shown a portrait of his brother. 'That square 
jaw, those big teeth, I would know Paul anywhere!' But was it Paul he recognised, or 
one or two of his features, on the basis of which he could make a reasonable guess 
as to the subject's identity? In the absence of obvious 'markers', he was utterly 
lost. But it was not merely the cognition, the gnosis, at fault; there was something 
radically wrong with the whole way he proceeded. For he approached these faces — 



THE MAN WHO MISTOOK HIS WIFE FOR A BOOK 283 



even of those near and dear— as if they were abstract puzzles or tests: He did not 
relate to them, he did not behold. No face was familiar to him, seen as a 'thou', 
being just identified as a set of features, an 'it'. Thus there was formal, but no trace 
of personal, gnosis. 10 

Dr. P provides us with a fascinating case study of how a neurological condition 
may completely alter our abilities to see and to relate to the phenomenological 
world. We can perhaps think of intellectual property rights as a similar affliction, 
founded on very particularized ideas of property and personhood, but narrated 
as universal truths, that prevents us from seeing our acts of reading, writing, cre- 
ating, sharing, and borrowing in terms of the relational world that they occupy. 
Instead, we see them abstracted of their social relations. 

The equivalent of Dr. P in the world of ideas is Daniel Defoe, the great chroni- 
cler of piracy's golden era, who writes that "A Book is the Author's Property, 'tis 
the Child of his Inventions, the Brat of his Brain; if he sells his Property, it then 
becomes the Right of the Purchaser; if not, 'tis as much his own, as his Wife and 
Children are his own." Defoe was of course writing at a time when wife and children 
could indeed be owned as property. But we now know better and understand that 
you cannot own your wife or your child, but you can feel that they are your own. 

So here we have before us the case study of Daniel Defoe, the man who mis- 
took his wife for a book. His condition (unlike Dr. P's) is not an isolated malady, 
and an increasingly large number of people are showing symptoms similar to 
Defoe's, encouraged and enabled by the large institutional sponsors of the mal- 
ady such as the World Intellectual Property Organization (WIPO), a malady whose 
contagion is ensured by instruments such as the TRIPS Agreement. 

DIFFERENT TRADITIONS OF THE SELF 

J. G. A. Pocock says that if property is both an extension of personality and a pre- 
requisite of it, then we should be aware of the possibility that different modes 
of property may be seen as generally encouraging different modes of personal- 
ity 11 One way in which we can rethink the idea of our relationship to what we 
create is not through terms of ownership, but through how close we are to it— 
through proximity. Proximity to people and things creates a relationship of care 
and responsibility, and when thought of in terms of things that we create, it allows 
us to create a different ethical register through which we can examine the rela- 
tionship between property and personhood. For Locke and many other thinkers 
within the Western metaphysical tradition, the idea of a distinct self serves as the 
basis for a range of concerns, from self-identity, to moral agency, to property. This 



284 LIANG 



account of the self within the tradition of possessive individualism has been chal- 
lenged both within the Western tradition and by non- Western accounts of the self. 

Proximity may indeed be the basis on which alternative accounts of the self 
may be forcefully articulated, because it is accompanied by a whole host of ethi- 
cal principles such as generosity and obligation that may help us order a differ- 
ent mode of dealing with what we "own." Proximity or closeness is marked by a 
relationship of care, and if we are to revisit the three modes of relationality that 
I invoked in the Spandau Ballet case, we see that proximity reworks the way we 
see the three relations: the relation to the self (to be an author is not just to own 
a work, but to own up to the work), the relation to the work (taking care of what 
you own, or the duty of care that emerges from proximity), and the relation to 
others (a relation predicated on an ethical bond). 

The opposite of an ethic of care and proximity is the violence and brutality 
that motivated Daniel Defoe to mistake his wife for a book. One consequence of 
the idea of a relational self is that it does not make sense to speak of an essential 
core that is the basis of a sense of unified self and self-identity Let us consider 
two challenges to the idea of the unified self that informs Western metaphysics. 
The first challenge emerges from the contrast between the idea of the self in West- 
ern philosophy and its absence in the non-Western tradition, while the second 
challenge emerges from the Western philosophical tradition itself. 

S. N. Balagangadhara, a philosopher whose work focuses on Indian traditions, 
argues that the basic idea of the self in Western cultures consists of a sense of "an 
inner core which is separable and different from everything else. In such a culture, 
when one speaks of 'finding oneself one means that one should look inside oneself, 
get in touch with an inner self that is there inside oneself, and peel everything away 
that surrounds this core. To such a self, even its own actions can appear strange." 12 

Furthermore, Western culture allows each of us a self — a self waiting to be dis- 
covered within each one of us, something that can grow and actualize itself, that 
either realizes its true potential or fails to do so. Such a versatile self has various 
properties. One of them is its reflexivity: The self is aware of itself as a self, or it 
has self-consciousness. Consequently, human beings who are endowed with such 
selves are all self-conscious beings. As we know, most philosophers are agreed that 
self-consciousness typifies the uniqueness of human beings, and that this self- 
consciousness distinguishes humans from the rest of nature. 

Balagangadhara contrasts the idea of the self in non-Western cultures with 
that of the West by using an interesting example. He says that if you were to look 
at the different ways in which a culture talks about persons, you would often find 
that in Western cultures, in answer to a question such as "What kind of a person 
is he?" you would find straightforward answers such as "He is a friendly person." 



THE MAN WHO MISTOOK HIS WIFE FOR A BOOK 285 



However, the same question can elicit a different response in a non-Western cul- 
ture, such as "He comes home every week to enquire after my health." According 
to Balagangadhara, while this initially seems like a wrong answer or an indirect 
answer, answers of this kind are very typical in a country such as India. He says 
that by reading these answers as in fact direct answers, we can see the answer 
asserting an identity relation between actions and persons. That is, Indian culture 
does not draw a distinction between an agent who performs an action and the 
action that the agent performs. An agent is constituted by the actions that a he or 
she performs, or an agent is the actions performed and nothing more. 

Thus for Balagangadhara, the self of a person is nothing other than the actions 
that the person performs. But these actions do not exist in isolation and are depen- 
dent in turn on how another person construes them: Person Y constructs person 
X's self, just as person X constructs person Y's self. Person Y is crucial for the con- 
struction of X's self, because in the absence of Y, the actions that X performs are 
meaningless. That is, Y is required so that X's actions may be seen as some specific 
type of action. If we were to restrict ourselves to X in order to talk about his or her 
self so as to contrast this notion with that of the West, we could say that the West- 
ern self consists of a bundle of meaningless actions. Because of this, the self of X 
depends upon continuously being recognized as such by Y. According to Balag- 
angadhara, there is nothing unusual about this, and it gestures toward the fact that 
we are all relational selves, and you are only a son, a daughter, a father, a friend, 
and so on to the extent you are so recognized. And you can be thus recognized 
only when you perform those actions that are appropriate to the station of a son, a 
daughter, a father, a friend, and so on. 13 

Let us now turn to another attempt at characterizing this idea of relationality 
or proximity, this time within more contemporary Western philosophy. Emmanuel 
Levinas is one of the key thinkers working with the idea of proximity or "being 
with" within the Western philosophical tradition, and his work has inspired a 
range of ethical philosophers as well as legal scholars to think through questions 
of the obligations that we may have to others. For Levinas, proximity implies a 
"closeness to others who can be approached but never reached. We are never 
exactly the same as another person, and in the trauma of that distance lies sum- 
moned our soul" and likewise our sense of responsibility 14 It is clear that unlike 
the non-Western idea of relationality that arises from a close sense of relation- 
ships, Levinas has a more expanded idea of relating. For him, "The relationship 
of proximity cannot be reduced to any modality of distance or geometrical con- 
tiguity, nor to the simple 'representation' of a neighbor; it is already an assigna- 
tion, an extremely urgent assignation — an obligation, anachronously prior to 
any commitment." 15 For Levinas, the ability to be in a proximate relationship 



286 



is what "intimates" an other, and this intimation forms the essence of who 
we are and why we have a responsibility to others. Levinas also sees proxim- 
ity as a complete experience that in many ways exceeds our theories and ideas 
of the world. 

The similarities between the idea of the relational self in non-Western thought 
and proximity in Levinas's work is striking. Levinas is impressively nonchalant 
about other pressing concerns in Western metaphysics, including intentionality or 
the existence of an essential self that defines our being. He is instead more con- 
cerned with the domain of experience and how we act responsibly. The ability to 
act responsibly is in turn dependent on the ability to respond adequately, and the 
instantiation of a response dilutes any unified sense of self, since neither the self 
nor intentionality makes any sense outside of its relation to another. I'm already 
obligated and called before any decision on my part. Therefore, there is no point in 
asking whether or not my act(ion) of responsibility is free or voluntary. If respon- 
sibility is prior to freedom, neither chosen nor not chosen, it is out of the question 
to ask under what circumstances I am responsible. 

REVISITING LOCKE 

While it is tempting to contrast the idea of the relational self with the Lockean idea 
of the autonomous individual, the task turns out to be difficult. If we consider, for 
instance, Locke's theory of relations, there are certain productive contradictions 
that emerge. Objects, according to Locke, are related to each other by the mind. He 
argues that there may be certain properties, for instance that of being white, that 
may not be a relational fact. But when we think of a relational idea, Locke sug- 
gests, that is, when we think of someone as a husband or as whiter than someone 
else, the mind is actually going beyond the particular to some other person or per- 
sons distinct from the self, and a relation is the result of this activity of the mind, 
which has simultaneously considered and compared two distinct things. 

For Locke, some relational terms such as "father and son," "lesser and bigger," 
and "cause and effect" are self-evident and can exist only together and explain 
each other. These correlative pairs "reciprocally intimate" each other, but it is not 
exactly clear whether there is a common reciprocal relational tie connecting these 
correlative pairs, a common relation that each member of the pair has toward the 
other that makes this correlation possible. This limitation seems to emerge from 
the fact that Locke sees the ability of naming and identifying relations as emerg- 
ing solely from the mind. In other words, the ontological status of relations seems 
unequivocally mind-dependent for Locke. The question that then logically arises 
is, how does the mind create a set of relationships to itself? 



THE MAN WHO MISTOOK HIS WIFE FOR A BOOK 287 



It is perhaps useful at this stage to return to the site of our original problem: 
the equation of self and owner that emerges in Locke's theory of property and 
personhood. We began by locating the conceptual problem within a specific lin- 
guistic dilemma: the manner in which English produces a reciprocal duality of the 
self, a self who is owning and a self who is owned. Balibar says that while it could 
be argued that this linguistic dilemma could be dismissed as a performative contra- 
diction, it would be more useful to look at the productive nature of this contradic- 
tion and the manner in which it resolves the contradiction in Locke by introducing 
another element — that of uneasiness. 

Balibar argues that for Locke, the process of identification or self-interpellation 
(I address myself) or the performative contradiction is already taken into account. 
For instance, in his segment on consciousness, Locke argues that there is no con- 
sciousness that is not associated with desire and at the same time troubled and 
pushed by it toward ever new contents or ideas, so that the notion of conscious- 
ness as a fixed or stable identity is a contradiction in terms. Consciousness is by its 
nature restless. It must escape itself toward new contents, and its identity is asso- 
ciated with a perpetual flow, escape, or train of ideas. The category that names this 
intrinsic association of consciousness is "uneasiness." Balibar argues that in light 
of this, we may return to Locke's identification of the self and owning and what it 
means to understand them as being exactly the same thing. He says that what is 
owned by me inasmuch as I own it (speaking, thoughts, actions) is the uneasiness 
of this relation and the fact that the identity or sameness of the self and its own 
does indeed exist, but only as an uneasy one. 16 

He argues, by returning to his reading of Browning's poem, that the critical 
element causing the uneasy appropriation of identity is the element of sexual dif- 
ference. It is the other with whom I make one and the same precisely because 
we can never become wholly identified, indistinguishable, with whom I experi- 
ence the uneasy relation of identity and difference, not only because it is conflic- 
tual. but because the identification of what is shared or what is the same and of 
what is separated or different can never be established in a clear-cut and stable 
manner: We "should mix as mists do." The name of this uneasy experience con- 
ventionally is "love." But we know that love is anything but a simple thing, per- 
haps because in love, there is precisely so much consciousness associated with 
so much desire. 

The implications of this line of thought are immense for a rethinking of the 
idea of knowledge creation in terms of proximity. If my own work can exist only in 
a certain relationship with others, then can I ever claim what is my own in a man- 
ner that seeks to exclude any claims that others may have? 



288 



RETURNING TO THE INTELLECTUAL PROPERTY DEBATE 

Let us now return to the domain that motivated this brief enquiry. The global 
acceleration of intellectual property norms in recent times is critically linked to 
a new articulation of our relationship to our selves, our work, and to others. The 
response that is required cannot be limited within the terms of political realism, 
whether of the left or the right. And the real potential of new modes of knowledge 
production and sharing (free software, open access) stem not from their status as 
solutions to the problem of the knowledge or information deficit alone, but from 
their rearticulation of alternative relationalities that do not generate untroubled 
and easy cohesive accounts of the self and its own. They instead offer us an oppor- 
tunity to think about the ways in which acts of sharing create new forms of inti- 
macies and of relating to each other. The global access to knowledge movement 
currently is as much premised on the language of rights and equity as it is depen- 
dent on acts of generosity and giving. In an era when the language of theft, mis- 
trust, and panic marks our relation with the world, it is all the more important to 
recall the ethical basis of our relationships with each other and with the world. 

Our global contemporary era is marked by all kinds of turbulences that momen- 
tarily dislodge our stable notions of the nation, identity, property, stability, friend 
and enemy, self and other. The experience of turbulence in an airplane induces the 
stranger next to you momentarily to become your most intimate human contact, 
while the uncertainty of the moment causes you to reach out to an unfamiliar, 
but reassuring hand. Only later does the uneasy recognition occur of a compact 
of unfamiliarity having been breached. Our abilities to communicate and to share 
ideas in ways that were hitherto unthought of provides us with an opportunity 
to rework our accounts of ourselves and the possible horizons of the relations we 
inhabit. Michel Foucault asks: 

what would be the value of the passion for knowledge if it resulted only in a certain 
amount of knowledgeableness and not, in one way or another and to the extent pos- 
sible, in the knower's straying afield of himself? There are times in life when the ques- 
tion of knowing if one can think differently than one thinks, and perceive differently 
than one sees, is absolutely necessary if one is to go on looking and reflecting at all. 17 

Seen in this light, what is narrated as transgressions in the world of ideas reap- 
pear as explorations and reinventions of the self, a curiosity about the other and 
perhaps a way of looking for your wife in what appears to be a hat or a book. 
"Hospitality," "gratitude," "friendship," "caring," "owning" — these almost sound 
like archaic words from a distant time in a period when juridical relations replace 
social relations and contracts of adhesion are more powerful than word of mouth. 
If gratitude is the moral memory of mankind, as Georg Simmel claimed, 18 then it is 



THE MAN WHO MISTOOK HIS WIFE FOR A BOOK 289 



perhaps time to refresh our memory dulled by the ubiquity of property and con- 
tracts. And frankly, it does not matter where these mnemonic tools emerge from, 
either temporally or spatially. If our sense of self has been narrowed by its lin- 
guistic affinity with the need to own, let's start exploring other semantic worlds 
where we can multiply and expand the idea of the self. Here are some with which 
to begin. 

The etymology of "data" comes from the Latin datum, which means a thing 
that is given, the neuter of which is "to give." Similarly, the word daata in Hindi/ 
Sanskrit is taken to mean "the giver," which suggests that we must always be gen- 
erous with information and make gifts of our code, images, and ideas. To be stingy 
with data is to violate an instance of the secret and sacred compacts of homo- 
phonic words from different cultural/spatial orbits (daata in Hindi and "data" in 
English) as they meet in the liminal zone between languages, in the thicket of the 
sound of quotidian slips of the tongue. 

Another entry point is provided by the common root words that bind the words 
"owe" and "own," so if intellectual property is about thinking of ways of owning 
the future, perhaps we need to start thinking not only about how we own, but also 
how we owe the future. The point is not to take these systems of administering the 
world of knowledge and ideas as a given, but to think about the ways in which they 
enable us to work out our relation with ourselves. As Patricia Williams reminds us, 
"The task ... is not to discard rights, but to see through or past them so that they 
reflect a larger definition of privacy and property: so that privacy is turned from 
exclusion based on self-regard into regard for another's fragile, mysterious auton- 
omy; and so that property retains its ancient connotation of being a reflection of 
that part of the universal self. The task is to expand private property rights into a 
conception of civil rights, into the right to expect civility from others." 19 

I end this piece with a small parable that many of us will have read while we 
were children. The story is from Antoine de Saint Exupery's tale The Little Prince. 
The Little Prince visits a number of planets and encounters a range of different 
characters. On the fourth planet, he meets a businessman who owns millions of 
stars, and the reason why he owns them is because he was the first one to think 
of owning the stars. The Little Prince is perplexed, because he can't seem to find 
a reason for owning the stars beyond the fact that they can be put in a bank to 
enable the businessman to buy more stars. The Little Prince tells the business- 
man that "I own a flower myself, which I water every day. I own three volcanoes, 
which I rake out every week. I even rake out the extinct one. You never know. So 
it's of some use to my volcanoes, and it's useful to my flower, that I own them. But 
you're not useful to the stars." 20 



290 



NOTES 

1 Hadley v. Kemp, Entertainment and Media Law Reports (UK) 589 (1999). 

2 For an excellent account of this case and the problems that copyright law has with musi- 
cal works, see Anne Barron, "Copyright Concepts and Musical Practices: Harmony or Dis- 
sonance," Social and Legal Studies 15, no. l (2006). For an interesting account of similar issues 
among musicians in India see Rajesh Mehar, "Understanding Notions of Creative Ownership 
among Contemporary Musicians in India," available on-line at http://communitylivejournal. 
com/whosemusic (last accessed May l, 2009). 

3 Hadley v. Kemp. 

4 C. B. MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (London: 
Oxford University Press, 1962). 

5 John Locke, journal entry, for June 5, 1683, quoted in John Marshall, John Locke: Resistance, 
Religion and Responsibility (Cambridge: Cambridge University Press, 1994), p. 153. 

6 See Etienne Balibar, "My Self and My Own: One and the Same?" in Bill Maurer and Gabri- 
ele Schwab (eds.), Accelerating Possession: Global Futures of Property and Personhood (New 
York: Columbia University Press, 2006). 

7 Robert Browning, "By the Fireside," in The Complete Poetic and Dramatic Works of Robert 
Browning (Boston: Houghton Mifflin, 1895), pp. 185-87. 

8 And yet at the same time it seems that there indeed does exist a large set of claims within 
diverse cultural traditions (including, as Browning shows, in English) in which a claim about 
something or someone may lie more in the domain of your relation with the person or object 
than as a claim of possession. In Nehiya (Cree), to refer to something as "mine" does not nec- 
essarily imply ownership, but refers instead to a relational proximity to objects (animate and 
inanimate) and to beings, along with the accompanying responsibilities and obligations that 
emerge from such a relational proximity. 

9 For an interesting contrast, see Stanley Cavell, A Pitch of Philosophy: Autobiographical Exer- 
cises (Cambridge, MA: Harvard University Press, 1994), where he argues that "those who are 
too sure ideas cannot be stolen like to say that ideas are not private property. But my feet are 
not my property, yet they are mine, and you are not to step on them. The punch line I have 
set up is not my property, but you are not to preempt it. My turn is not my property, but you 
are not to take it. Justice is not solely a measure of property rights" (p. 37). 

10 Oliver Sacks, The Man Who Mistook His Wife for a Hat and Other Clinical Tales (New York: 
Perennial Library, 1987), p. 13. 

11 J. G. A. Pockock, "Tangata Whenua and Enlightenment Anthropology," New Zealand Journal 
of History 26, no. l (April 1992): pp. 28-33. 

12 S. N. Balagangadhara, "Comparative Anthropology and Moral Domains: An Essay on Selfless 
Morality and the Moral Self," Cultural Dynamics l, no. l (1988): pp. 98-128. 

13 Ibid. 

14 Desmond Manderson, Proximity, Levinas, and the Soul of Law (Montreal: McGill-Queen's 
Press, 2007), p. 14. 

15 Emmanuel Levinas, Otherwise Than Being; Or, Beyond Essence, trans. Aphonso Lingis (The 
Hague: Martinus Nijhoff, 1981), pp. 100-101. 

16 Balibar, "My Self and My Own." 

17 Michel Foucault, The History of Sexuality, Volume 2: The Use of Pleasure, trans. Robert Hurley 
(New York: Vintage, 1990), p. 8. 



THE MAN WHO MISTOOK HIS WIFE FOR A BOOK 291 



18 Georg Simmel, "Faithfulness and Gratitude," in The Sociology of Georg Simmel, ed. and trans. 
Kurt H. Wolff (New York: Free Press, 1950), p. 388. 

19 Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University 
Press, 1991), pp. 164-65. 

20 Antoine de Saint-Exupery, The Little Prince, trans. Richard Howard (New York: Houghton 
Mifflin Harcourt, 2000), pp. 39-40. 



292 



Free-Trade Agreements and Neoliberalism: 

How to Derail the Political Rationales that Impose 

Strong Intellectual Property Protection 



Caelle Krikorian 



Free-trade agreements are at the forefront of efforts to increase intellectual prop- 
erty protection. Their chapters on intellectual property regularly enforce intel- 
lectual property owners' most restrictive limitations and have become one of the 
most efficient ways in which developed countries are able to increase intellec- 
tual property protection in the developing world. They also exemplify the kind 
of relations that predominate between the rich countries and the Global South: 
the imposition of an apparatus of legal administrative rules that mostly favors the 
rich countries. The intervention of trade negotiators allows intellectual property 
exporters to maintain control over the sources of economic accumulation— infor- 
mation and knowledge — and to prevent their appropriation by others. During the 
era of colonization and under both the mercantile and industrial economies, devel- 
oping countries were considered mainly to be sources of raw materials. 1 In the 
knowledge economy of the information society, it is now the populations of devel- 
oping countries that are exploited — relegated to the status of a workforce and, 
when they can afford it, a source of simple consumers, but commonly excluded 
from access to knowledge. 

During the colonial era, a number of developing countries under colonization 
had to adopt legislation on intellectual property similar to those of the coloniz- 
ing country 2 After decolonization, however, many developing countries reviewed 
and modified their laws in order to introduce more flexibilities and implement 
standards more favorable to their development and to the fostering of their local 
industries. The result was a nascent resistance in developing countries to the 
imposition of stronger and what they considered to be unbalanced intellectual 
property regimes. 

Indian policy makers, for example, drafted and passed a new patent law in 1970 
allowing patents on processes used to fabricate pharmaceutical products, but not 



293 



on the products themselves, which made it possible for local industries to manu- 
facture and market any existing drug as long as they could establish their own pro- 
duction process. Many other countries, such as Argentina or Mexico, also modified 
their legislation to limit the scope of patentability after decolonization. A study 
conducted by the World Intellectual Property Organization (WIPO) in 1988 showed 
that forty-nine countries among the ninety-eight states that were then signatories 
of the Paris Convention for the Protection of Industrial Property excluded phar- 
maceutical products from protection. 3 

In the 1960s, developing countries had organized to revise the Berne Conven- 
tion for the Protection of Literary and Artistic Work, originally signed in 1886, so 
that it would take into account their educational needs and favor their economic 
and industrial-development goals and technology transfers from developed coun- 
tries. 4 Countries such as India, Brazil, and Korea developed an offensive position 
from the 1960s to the 1980s, leading developing countries to mobilize against the 
increasing protection of intellectual property, both in international arenas and in 
their own national policies and laws. 

During an attempt to revise the Paris Convention in the 1980s, 5 when the 
United States tried to obtain higher standards of protection, developing countries 
acting as a bloc mobilized to lower them. They formalized the G-77, which was 
established in 1964 by seventy-seven developing countries at the end of the first 
session of the United Nations Conference on Trade and Development in Geneva, 
and some of them maintained a firm position through the Uruguay Round negotia- 
tions of the General Agreement on Tariffs and Trade (GATT), notably against the 
inclusion of an agreement on intellectual property, and later in favor of retain- 
ing flexible compulsory licensing provisions in the agreement. 6 However, in the 
end, there was no revision of the Berne Convention, and in 1994, the Trade-Related 
Aspects of Intellectual Property Rights Agreement (the TRIPS Agreement) was 
finally adopted by 128 countries, including many developing countries, ultimately 
strengthening intellectual property rights for all the members of the newly created 
World Trade Organization (WTO). 

The promulgation of that agreement is one indication that the movement 
undertaken by the developing countries in opposition to increasing intellectual 
property protection was facing a powerful counterforce promoting stronger pro- 
tection of intellectual property, which soon became dominant. A neoliberal "revo- 
lution," as David Harvey characterizes it, 7 reshaped the priorities of world leaders 
and imposed neoliberalism as the way forward for the world. It is in this context 
that, despite the free-market rhetoric that accompanied them and contrary to their 
very name, free-trade agreements started to be employed as a way to increase 
restrictions on intellectual property. 



294 KRIKORIAN 



This essay analyzes the political logic in which the increase of intellectual 
property protections through the negotiation of free-trade agreements is embed- 
ded. Neoliberalism can be seen as many different things, among them, as a way 
to think about power and to regulate behaviors, as an ideology offering people a 
fiction that appears coherent, and as a set of public policies adopted and imple- 
mented under the effective collective action of the ruling class. Without trying 
to reconcile the existing interpretative frameworks of neoliberalism, what follows 
will consider some of the characteristics of this political regime, assess its strength 
and weaknesses, and consider the strategies and tactics that a mobilization such 
as the A2K movement can take to overthrow its dominant logic and to counter its 
actions in the global field of intellectual property protection. 

THE LOGIC OF THE U.S. FREE-TRADE AGREEMENTS 

Many of the world's countries, whether or not they are members of the WTO, have 
levels of intellectual property protection in their national laws that are much more 
elevated than what is required by the TRIPS Agreement. One may wonder why, 
since few countries routinely export intellectual property goods and thus few ben- 
efit directly from these legislations. 

Intellectual property owners, whether private companies or the governments 
that support them, have developed strategies to increase intellectual property 
standards globally. As a result, after the adoption of the TRIPS Agreement in 1994, 
intellectual property protection expanded considerably around the world while 
intellectual property owners' rights were extended in different directions. 

The United States has played and still is playing a leading role in this process, 
and the free-trade agreements that it is promoting are key elements of a step- 
by-step strategy. Peter Drahos and John Braithwaite have described the "forum- 
shifting" tactic in which the intellectual property movement shifts from one forum 
of negotiations to another where it is more likely to succeed, from bilateral talks 
to the WTO, from the WTO to WIPO, and so on. 8 Hence, it is possible to follow 
the history of the increase in the standards of intellectual property protection by 
monitoring U.S. intellectual property demands in free-trade negotiations over time 
in different international and bilateral or regional forums. 9 

Within this system, free-trade agreements represent a parallel venue to the 
multilateral arena that has been repeatedly used by the United States trade rep- 
resentative, for they offer several advantages over the multilateral negotiations, 
including the fact that they deal with powers that are unequal economically and 
politically in ways that are advantageous to the United States. Before the adop- 
tion of the TRIPS Agreement, the United States exploited bilateral negotiations 



FREE-TRADE AGREEMENTS AND NEOLIBERALISM 295 



to facilitate acquiescence to TRIPS — once countries had accepted provisions simi- 
lar to those proposed within TRIPS, they were less likely to oppose multilateral 
U.S. demands and might even support them during international discussions. 
After TRIPS was signed, the United States used bilateral agreements to develop 
higher standards. 10 

The tactic of using various forums for negotiations rested on the develop- 
ment of legal instruments providing the U.S. negotiators with tools to facilitate 
the action of the U.S. trade representative and to influence its trade partners. This 
tactic also hinged on threatening countries with commercial retaliation or using 
economic benefits as an incentive to impose stronger intellectual property protec- 
tions, a carrot-and-stick approach that started in the early 1980s. The Caribbean 
Basin Economic Recovery Act signed by President Ronald Reagan in 1983 is one of 
the earliest examples of this. It stated that a Caribbean country "would be given 
duty-free privileges for their goods in the US market if they met certain criteria" 
and would not if they "had taken steps in relation to intellectual property that 
amounted to the nationalization or expropriation of that property." 11 The economic 
interests at stake were not significant, but movie copyright owners had succeeded 
in convincing Reagan that trade and intellectual property could and should, in 
some cases, be linked. 

In 1984, similar language was reused in an amendment of the Trade Act of 1974. 12 
The Trade and Tariff Act linked trade and intellectual property and authorized the 
withdrawal of trade benefits from a country or the imposition of duties to goods 
exported to the United States if a U.S. trade representative deemed the country 
insufficiently protective of U.S. intellectual property assets. In 1988, a new amend- 
ment led to what is known as the "Special 301" provision, which requires the U.S. 
trade representative to identify "foreign countries that deny adequate and effec- 
tive protection of intellectual property rights or fair and equitable market access 
for U.S. persons that rely on intellectual property protection." 13 Depending on the 
level of dissatisfaction of the U.S. trade representative and based on U.S. stake- 
holders reports, the countries are placed on a "Watch List," on a "Priority Watch 
List," which entails greater scrutiny, or on a "Priority Foreign Countries" list, 
reserved for the worst cases, where countries can be subjected to a Section 301 
investigation and face the threat of trade sanctions, including through the General- 
ized System of Preferences and the "Section 306 Monitoring" list. 14 Over time, the 
objectives of the U.S. negotiations concerning intellectual property became more 
explicitly described in the law. The Trade Act of 2002 (H.R. 3009), in outlining the 
U.S. trade representative's goals, states that "the principal negotiating objectives 
of the United States regarding trade-related intellectual property are ... to further 
promote adequate and effective protection of intellectual property rights, including 



296 KRIKORIAN 



through . . . ensuring that the provisions of any multilateral or bilateral trade agree- 
ment governing intellectual property rights that is entered into by the United States 
reflect a standard of protection similar to that found in United States law." 15 

We can distinguish several periods of bilateral trade negotiations over the last 
few decades of U.S. history. The first one began in the 1980s. As developing coun- 
tries levied escalating criticism against international intellectual property conven- 
tions, the United States faced mounting resistance in multilateral forums such as 
WIPO and the United Nations Conference on Trade and Development. These con- 
straints, as well as the emergence of a new strategy developed by industry, led the 
U.S. government to press for the integration of intellectual property rights into the 
General Agreement on Tariffs and Trade (GATT) and the Uruguay Round negotia- 
tions that ended with the creation of the WTO. 

Starting in the mid-1980s, a number of bilateral agreements on intellectual 
property were signed, 16 compelling partner countries to accept intellectual prop- 
erty rights standards similar to those outlined in the TRIPS Agreement. In the 
meantime, bilateral investment treaties requiring "adequate and effective" intel- 
lectual property rights were signed. In November 1983, President Reagan and 
Israeli Prime Minister Shamir launched the negotiations of a U.S. -Israeli free-trade 
agreement, including provisions on intellectual property. This agreement con- 
cluded in February 1985 was a first for the United States, in terms of both scale and 
content. 17 A few years later, in 1990, the negotiations of the North American Free 
Trade Agreement between the United States, Mexico, and Canada started. Con- 
cluded in August 1992, it became a landmark for future U.S. negotiations and a 
baseline for intellectual property demands. This period, which saw the emergence 
of a new U.S. policy articulating a relationship between intellectual property and 
trade, ended with the successful ratification of the TRIPS Agreement in 1994. 

Developing countries expected that once the United States had achieved its 
objectives at the WTO, the pressure would fade, but the post-TRIPS era did not 
bring a slowdown of U.S. bilateral activity or a diminution of its demands. Talks for 
a Free Trade Area of the Americas involving thirty-four countries began in Decem- 
ber 1994. Bilateral negotiations with Vietnam, Laos, Singapore, Jordan, and Chile 
started toward the end of the 1990s and at the dawn of the new millennium. In 2002, 
the Trade Act restored the fast-track authority of the president to negotiate inter- 
national trade agreements, 18 which had expired in 1994, sparking intense negotia- 
tions with Central American countries (the Central American Free Trade Agreement, 
including the Dominican Republic), with Morocco and Australia, with the countries 
of the Southern African Customs Union, 19 with Bahrain, Oman, the United Arab 
Emirates, and with Bolivia, Ecuador, Panama, Thailand, South Korea, Malaysia, 
and Kuwait. Negotiations have also been considered or planned with a number of 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 297 



countries, including Qatar, Indonesia, and New Zealand. As Jeffrey Schott of the 
Institute for International Economics puts it, this "spurt of negotiating activity — in 
parallel with the Doha Round of multilateral trade negotiations in the World Trade 
Organization (WTO) — is unprecedented in postwar US trade policy." 20 

In recent years, some of these negotiations have stopped because the obsta- 
cles to reaching an agreement were too numerous to be overcome within a limited 
time or because the political context was not favorable. Negotiations for the Free 
Trade Area of the Americas came to a standstill in March 2004. Talks with Thai- 
land were suspended two years later, in March 2006, followed shortly thereafter 
by a definitive stalling of Southern African Customs Union negotiations in April 
and the suspension of deliberations with Ecuador in May. Negotiations with Qatar 
have been on hold since 2006. However, most of the agreements that the United 
States was negotiating have been signed. Several countries are still in the midst 
of negotiations, including Malaysia and the United Arab Emirates, but since fast- 
track authority expired in July 2007, the intensity of trade negotiations has slowed 
down significantly. 

As I began by noting, the free-trade agreements negotiated by the United 
States during this period require levels of protection that are more stringent than 
the standards required by the TRIPS Agreement of the WTO. 21 They contain sev- 
eral types of provision that increase protection and/or strengthen monopolies and 
that, for instance, limit or preclude the introduction of competitive generic prod- 
ucts or delay the entrance of creative work into the public domain. They play out 
in two different ways: by increasing the measures of protection or by reducing the 
possibility of using flexibilities — measures that can be used to facilitate access to 
knowledge and knowledge goods under TRIPS — to limit exclusive rights. 22 

Among the intensification of protections, the provisions of these free-trade 
agreements include the expansion of patentability criteria and the limitation of 
exceptions to patentability (for example, the patentability of new uses of known 
medicines and methods for the treatment of plants, animal, seeds, genes, and so 
on). These measures are responsible for the increase in the number of unessen- 
tial patents, an increase that adds new barriers to the production of and access to 
generic medicines, food, medical technologies, and so on. At the same time, sev- 
eral agreements include a ban on what is known as "pregrant opposition," which 
would allow third parties to oppose the granting of a patent while it is still under 
review by the patent office and which is an efficient tool to curtail the prolifera- 
tion of petty patents. Other measures extend the term of patent protection beyond 
the twenty years imposed by the TRIPS Agreement, using the pretext of delays 
during the patent-granting procedure and/or the marketing-authorization proce- 
dure. Although patent rights are private rights, the provisions of U.S. free-trade 



298 KRIKORIAN 



agreements link patent status to drug-marketing approval and compel regulatory 
agencies to play the role of defenders of patent owners' interests. They request 
that the regulatory agency check the patent status of products and that patent 
owners be informed if or when generic competitors request marketing approval. 
Free-trade agreements also create exclusive rights over marketing-approval data 
that prevent the introduction of generic versions of pharmaceutical products into 
the market, even in the absence of a patent. In order to secure marketing approval, 
companies have to provide regulatory agencies with clinical data to prove the 
safety and efficacy of their products. Data-exclusivity provisions prohibit relying 
on these data to approve generic versions of the original product. Not only does 
this measure prohibit generic competition even in the absence of patent protec- 
tion, but it establishes a monopoly that, due to the absence of clear mechanisms to 
do so, is even more difficult to challenge than a patent. 

Measures included in free-trade agreements also limit the flexibilities avail- 
able to developing countries, such as compulsory licensing, whereby the use of 
a patent can be allowed without the consent of its holder. They do so by restrict- 
ing the grounds on which the compulsory license can be issued and through data- 
exclusivity provisions that indirectly prevent countries from taking full advantage 
of compulsory licensing by blocking marketing approval for generics produced or 
imported under compulsory licensing. Likewise, they prohibit parallel imports — 
the importation and resale of a patented product in a country without the consent 
of the patent holder, which allows the purchase of cheaper products from a foreign 
country — by imposing a national or regional regime of rights exhaustion. 

Copyright laws are targeted by free-trade-agreement provisions, as well, 
resulting in the obstruction of fair use and the limitation of access to all sorts 
of materials (in hard-copy or digital form), including the prevention of the on- 
line distribution of software, music, or publications, all of which amounts to an 
obstruction to education, research, technology advancement, and publishing, but 
which also endangers the global architecture of the Internet and its freedom as 
a public space. Free-trade agreements request copyright protection similar to or 
stronger than what prevails in U.S. copyright laws, such as the 1998 Digital Millen- 
nium Copyright Act. Many of them extend the term of copyright protection to the 
life of the author plus seventy years or to seventy years from the publication or 
creation of the work. Because in many countries, the copyright protection is fifty 
years, the extension further delays the entrance of works into the public domain. 
Just as they prohibit parallel imports of patented products such as medicines, free- 
trade agreements prohibit parallel imports of copyrighted works that have been 
lawfully sold in foreign markets. They also impose technical-protection measures 
on copyrighted works and create obligations to prevent the circumvention of 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 299 



such measures, and enhance enforcement obligations that go beyond the TRIPS 
requirements, including, in some cases such as Korea, very specific unilateral obli- 
gations to prosecute Internet piracy, impose liabilities on Internet service provid- 
ers whose networks are used to distribute copyright-infringing material, and shut 
down offending Web sites. This is in line with the adoption of criminal sanctions 
or increased criminal penalties for a range of activities that the United States also 
promotes in international negotiations, such as those that took place over the 
Anti-Counterfeiting Trade Agreement. Free-trade agreements even enlarge the 
concept of infringement, for example to acts of reproduction or the use of copy- 
righted material that would not be considered as such under the fair use limitations 
of the U.S. copyright law. This includes changing the definitions of "reproduction" 
and "material form" to cover transitory reproductions, shifting the burden of proof 
onto the defending party to show that the activity is noninfringing, and a number 
of similar measures. 

In addition to all this, U.S. free-trade agreements require adherence to inter- 
national treaties such as the WIPO Copyright Treaty and the WIPO Performances 
and Phonograms Treaty, which require that countries adopt additional measures to 
impose, increase, and protect the rights of copyright holders. 

With the development of new technologies and the emergence of the knowl- 
edge economy, the race for economic dominance became a technology race 
between the rich countries that have control over the production of scientific and 
technical knowledge and the less developed countries trying to acquire this knowl- 
edge and to develop their own potentials. As Ha-Joon Chang notes, "knowledge 
had always flowed from where there is more to where there is less," 23 and thus the 
task for the United States is to stem the flow of scientific and technical knowledge. 
This is precisely what is at stake with the restrictions on intellectual property in 
the U.S. free-trade agreements. 

Since the Democratic Party took control of the U.S. House of Representatives 
and the Senate in 2006, Democrats have raised concerns about the country's pol- 
icy on free-trade agreements. 24 One consequence has been a new trade arrange- 
ment between Congress and the White House, adopted in May 2007 in the con- 
text of the approaching Congressional passage of free-trade agreements signed 
with Peru, Panama, and Colombia. Several aspects of the TRIPS-plus provisions 
in these agreements were revised: Patent extensions and mandatory linkages 
were eliminated, while data exclusivity was limited to five years. These changes 
affected only the three agreements pending at the time, which, regardless of these 
improvements, nevertheless still remain more protective than the WTO standard. 
They did, however, mark the first time since the United States embarked on its 
post-TRIPS pursuit of free-trade agreements that the U.S. trade representative 



300 KRIKORIAN 



officially and publicly reversed the policy of pursuing increased levels of intellec- 
tual property protection. Nevertheless, the fact that an agreement was ultimately 
reached between the Congress and the White House also demonstrates that the 
current U.S. trade policy, with minor changes such as these, is still a bipartisan one. 

U.S. FREE-TRADE AGREEMENT POLICY: THE POLITICAL CONTEXT 

Peter Drahos and Susan K. Sell have both shown how a handful of corporate lead- 
ers got together to convince the U.S. administration and successive U.S. govern- 
ments, as well as the international business community and the governments of 
other developed countries, of the necessity of formally linking trade with intel- 
lectual property and of including intellectual property in the GATT negotiations. 25 
As a result of this lobbying effort, the line of demarcation between U.S. corpora- 
tions and the U.S. government became blurred. This is not to say that the U.S. 
administration strictly follows the same agenda as the business community, blindly 
obeys it, or is completely corrupt, 26 but U.S. corporate representatives gradually 
have found ways to come closer to policy makers, establishing regular contacts 
and collaboration. Corporations thus have become not only useful collaborators, 
but indispensable in the process of policy making, creating interdependency 
between them and the policy makers. 27 In this collaborative dynamic, policy mak- 
ers slowly have incorporated business logic and goals into the process, and these 
have become part of those of the government's own logic and goals once they were 
included in its administrative and legal language. 

The history of international intellectual property negotiations involving the 
United States provides many examples of how this dynamic was established and 
how it unfolded. Drahos and Braithwaite recount the example of how, as the 
prospect of the negotiations on intellectual property during the Uruguay Round 
loomed, the U.S. trade representative asked U.S. businesses to provide negotiat- 
ing objectives and concrete demands, which resulted in strong similarities between 
official U.S. documents and the companies' own "blueprint" for trade negotia- 
tors, the Basic Framework of GATT Provisions on Intellectual Property: Statement 
of Views of the European, Japanese and United States Business Communities, when 
U.S. officials were not simply borrowing parts of this document. 28 The same kind 
of phenomenon can be observed more recently between the annual U.S. trade rep- 
resentative's 301 report and the submissions that the industry provides every year. 

Of course, U.S. business goals in many ways reflect the goals and interests 
of multinational corporations, regardless of where the headquarters or produc- 
tion facilities of these corporations are, a phenomenon reinforced as economic 
globalization intensifies. This is not to say that a company's nationality, or more 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 301 



precisely, the nationalities of its executive decision makers, no longer matters. As 
Chang notes, most top executives are nationals from the country in which the firm 
originates. 29 Capital stays rooted geographically, and its logic does not override the 
logic of national interests. However, following Jeff Faux, we can consider the logic 
of company executives to be similar to a class logic, 30 which illustrates itself in its 
ability to define common objectives, to then promote them within governments 
and among political leaders, inspire reforms, and in some ways structure society 
beyond national borders. The revolving-door practice, in which employees shift 
back and forth between the public and the private sector, which is so common in 
the United States, is part of how that system homogenizes the way leaders see 
issues and define policy goals. Money changes hands in some cases, but most of 
the time, things happen more through the exchange of favors and the sharing of 
common views and interests. 

But the phenomenon observed in the field of intellectual property is not only 
the result of the collective action of a fraction of the world population. It is also 
in line with a broader change in politico-economic governance that has unfolded 
since the end of the 1970s: the emergence of neoliberal rationality, which has 
favored both a new attitude by business toward governments and the redefinition 
of these two entities, their roles, and the relations between them. With neoliberal- 
ism, political affairs, like all sectors of society, have become subjected to economic 
rationality, while in turn, the new political rationality has been institutionalized 
and spread. 31 It has embraced the state, which has redefined itself according to 
market logic as subject to profitability criteria and thus seeks to favor entrepre- 
neurial interests in its public-policy decisions and uses the law as an instrument to 
serve this purpose. 32 

Neoliberalism provided the conditions to impose a new global intellectual 
property system in the 1990s: a new definition of the state and its prerogatives, 
a new relationship between the public and private spheres, and the expansion of 
free-trade agreements as vehicles for promoting strong intellectual property pro- 
tection provisions. In turn, stricter intellectual property protections have been one 
of the ways in which the dominant class spreading neoliberalism has reinforced its 
power by securing its control of the assets that fuel capitalist accumulation in the 
knowledge economy. 

While their theoretical foundations are based on the classical liberal econom- 
ics of Adam Smith and its followers, neoliberals stray from their ancestors in that 
they do not limit the influence of market logic to the economic sphere, but at 
the same time do not take the market as a natural fact. 33 Neoliberals disparage 
state intervention when the state acts as a social and economic safety net, but 
encourage the state to support and protect economic activity and to guarantee 



302 KRIKORIAN 



the conditions of competition and free trade. The free market, unhampered by 
government interference in its effects, but assisted by a range of state interven- 
tions, including deregulation and privatization, is supposed to be able to reach 
maximal economic profitability. Neoliberals, unlike classical liberals, are not both- 
ered by monopolies as long as they emerge within the market, for they believe 
they will be automatically regulated by the economic dynamic, but they reject, 
in theory at least, institutionalized forms of monopolies, whether public or pri- 
vate. 34 Their deep enthusiasm for strong intellectual property rights — the justi- 
fication being that insufficient protection of intellectual property rights harms 
free trade by introducing trade distortions — introduces contradictions into this 
orthodoxy, since it results in extensive institutionalized monopolies and heavy 
regulation hedging a market economy. 35 That the TRIPS Agreement, with its sub- 
stantial protections for intellectual property, is part of the WTO can be seen as 
one of the paradoxes that illustrates existing tensions between the theory of neo- 
liberalism and the reality of its practices. But such contradictions have not pre- 
vented the business and economic elites in the United States and the United States 
government from pressing for greater restrictions on intellectual property in the 
past decades. 

Intellectual property protection can be seen as a natural extension of the pro- 
prietary system promoted by classical liberalism as adapted to the growing knowl- 
edge economy. It is a key factor in controlling the conditions of production and 
commodification of what are currently the most valuable goods within the capital- 
ist order. Neoliberals obviously have an interest in making the control of informa- 
tion technologies a major source of accumulation — the motivation to do so was 
increased by the belief in the risk of the decreased competitiveness of the United 
States and the fear of an economic decline that spread among U.S. policy makers 
and economists at the end of the 1970s and the beginning of the 1980s. 36 Intellec- 
tual property was seen as important to securing the position of U.S. industries, and 
a strong intellectual property regime was seen as central to securing the profitabil- 
ity of their technologies and innovations. 

In the United States, the lax domestic patent environment gave way in the 
1980s to a resurgence of patent rights, while antitrust laws and policies, on the 
other hand, were weakened. 37 This change in the U.S. patent regime attests to a 
more general change in the thinking about intellectual property and its role in 
the economic life of the United States. At stake was the ability to prevent foreign 
economies from autonomously absorbing "U.S." technologies and their benefits. To 
use Drahos and Braithwaite's portrayal in Information Feudalism, "old protection- 
ism was about keeping your rival's goods out of your domestic market. New pro- 
tectionism in the knowledge economy was about securing a monopoly privilege in 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 303 



an intangible asset and keeping your rival out of the world markets." 38 

As we began by noting, until the late 1970s, developing countries were able to 
rely on domestic market-protection measures and subsidies to undergird indus- 
tries or specific economic sectors and to relax intellectual property rules in order 
to achieve better economic growth and development — in other words, they were 
doing what developed countries had done in their time as developing countries, 
too. This rapidly changed with the new direction encouraged by the United States 
and other wealthy countries. Developing countries were now bound by the imper- 
ative to adopt the rule of free markets and free trade while securing stronger rights 
for intellectual property owners. 

Under the influence of the "Chicago School" of free-market economics, Ronald 
Reagan, who first took power in 1981, and his administration played a fundamen- 
tal role in the changes in U.S. intellectual property policy. An efficient network 
of individuals in American institutions was gradually put in place through which 
significant legal changes were introduced domestically. In 1981, Reagan appointed 
William F. Baxter as head of the Antitrust Division of the Department of Justice, 
and Baxter introduced several legal changes aimed at increasing intellectual prop- 
erty protection while deregulating competition. 39 In 1982, Reagan signed the bill 
creating the Court of Appeals for the Federal Circuit, which became an important 
tool for patent owners to promote their interests, 40 to mention only two examples. 

On the international level, with the adoption of the Trade and Tariff Act of 1984, 
Reagan became the first U.S. president to have a direct say on the behavior of for- 
eign countries toward intellectual property and their access to Generalized System 
of Preferences benefits. 41 He rapidly made use of this new prerogative: In 1988, he 
announced that Taiwan, South Korea, Singapore, and Hong Kong were going to 
be removed from that program the following year. 42 This use of actual sanctions 
had the important effect of giving credibility to latter threats, even though, in the 
future, inscription of countries on the 301 list rarely led to real punitive measures. 
In 1986, Reagan set up the Council on Competitiveness, which gathered together 
corporate CEOs, university presidents, and labor leaders and which became one 
of the trade institutions within which executives from pharmaceutical companies 
introduced and pushed the issue of intellectual property. 43 

On February 6, 1986, in a message to Congress, the president declared: "Trade 
is the life blood of the global economy. Growing world markets mean greater pros- 
perity for America and a stronger, safer, and more secure world for the family 
of free nations. We will continue to work to promote a free, fair and expanding 
world trading system. ... In addition, we will propose legislation to strengthen and 
broaden protection of intellectual property." 44 Intellectual property was officially 
now on the U.S. political agenda. 



304 KRIKORIAN 



Globally, Ronald Reagan was a key player in the neoliberal revolution, striving 
with great success, along with Margaret Thatcher, to make what had been minor- 
ity positions become the mainstream intellectual, political, and ideological frame- 
work. 45 Once in place, this new framework made it difficult for their successors, 
regardless of their own beliefs or political orientations, to escape the new politi- 
cal rationality or to change the course of policies or to extract themselves from 
the web of relations and obligations to which they were linked. In this regard, 
the resumption by the Clinton Administration of the free-trade agenda that Rea- 
gan had launched illustrates how, during the 1990s, neoliberalism was so largely 
embraced that it became the new orthodoxy. 

Bill Clinton declared during his presidential campaign in 1992 that he would not 
support the North American Free Trade Agreement (NAFTA) unless social protec- 
tion was included in it, but that did not prevent him from becoming the master 
of ceremonies for its signing in November 1993, once he was elected. The idea for 
NAFTA was first proposed by Ronald Reagan in 1979. The negotiations that started 
in 1990 were conducted by the first Bush administration. It was then signed and 
sent to Congress for approval by Bill Clinton. To emphasize what was framed as 
a bipartisan victory, Clinton appeared at the signing ceremony together with for- 
mer presidents George H. W. Bush, Jimmy Carter, and Gerald Ford. The message 
was clear: NAFTA was above ideology. As Vice President Al Gore stated during the 
ceremony: 

There are some issues that transcend ideology. That is, the view is so uniform that it 
unites people in both parties. This means our country can pursue a bipartisan pol- 
icy with continuity over the decades. That's how we won the Cold War. That's how 
we have promoted peace and reconciliation in the Middle East. And that's how the 
United States of America has promoted freer trade and bigger markets for our prod- 
ucts and those of other nations throughout the world. NAFTA is such an issue. 46 

Free-trade agreements are a very efficient tool in the process of promoting neo- 
liberal policies. They are effective not only because they are promoted by the most 
powerful political and economic country of their time, but also — an illustration of 
the expression of a hegemonic system — they become perceived in many political 
and intellectual circles as an option that is nonideological. The consequences of 
signing a free-trade agreement thus seem to be apprehended outside and indepen- 
dently of the issue of the political system from which it is generated and that it 
reinforces. This is shown by the fact that even government leaders with leftist polit- 
ical orientations are involved in free-trade-agreement negotiations — or want to be. 

A principal tenet of this pervasive hegemonic system is the assumption that 
securing private property is the most efficient means to ensure productivity and 



FREE-TRADE AGREEMENTS AND NEOLIBERALISM 305 





A DVD? 



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To report fake DVO'sales »fc$B$ 
v C J> ■UK. 



The Market, UK antipiracy advertisement (available on-line at http://www.youtube.com/watch?v=yXiHIY6iHqk; 
www.officialdvd.co.uk) (Red Planet Accidental 2007). 



make citizens responsible — the language of individual responsibility being one 
of the key terms of neoliberalism. Individuals are responsible for what they own: 
This line of argument is used to discredit publicly owned companies and public 
services as being inefficient and underproductive. This framing, used in the con- 
text of the Cold War to decry the Communist economic system, was later "natu- 
rally" incorporated into neoliberal discourse and disseminated as the first waves 
of massive privatization took place in Britain under Thatcher in the early 1980s. 
The belief — practically a doctrine — that private equals good, while public leads to 
failure, became common rhetoric of neoliberal propaganda. One can easily imagine 
how, as a further evolution of this equation, the conventional wisdom could soon 
become that free (as in free of charge) equals bad — or dangerous. Lawrence Liang 
describes very convincingly the sort of insecurities that grow regarding knowledge 
goods while intellectual property protections increase. 47 The fear or apprehension 
to which he refers, the fear of trespassing or unlawful appropriation, could easily 
expand and apply to all free goods. Are they really free? Am I doing something 
wrong by downloading them? If they are free, are they safe? 

The propaganda advocating increases in protections for intellectual property 
rights commonly plays on this sort of insecurity. Public-relations offensives of 
brand-name pharmaceutical companies, for instance, recurrently state or imply 
that generic medicines are of low quality. Initiatives such as the Anti-Counterfeiting 
Trade Agreement, an international agreement currently under expedited 



306 



KRIKORIAN 



negotiation, 48 use semantic shifts to undermine the image and use of certain goods 
and to extend the realm of illegality to them. An obvious example is the use of 
the term "counterfeit" to designate generic products. For its part, the entertain- 
ment industry multiplies commercials and campaigns accusing pirated DVDs of 
being bad copies and of supporting terrorism, describing those who copy goods 
as criminals and those who buy them and use them as thieves. 49 These campaigns 
use threats of imprisonment, social exclusion, and opprobrium, creating a fear of 
cheap or free goods that may fall within our reach, but with which contact can be 
shown to be extremely dangerous. 

These narratives constructed by intellectual property rights owners aim at 
modifying representations and changing behaviors while promoting legal reforms 
and securing the place of their products in the market. Their leitmotifs are the war 
against counterfeiting and piracy and stronger enforcement of intellectual prop- 
erty rights. This anti-A2K campaign is being developed to counter recent setbacks 
at the multilateral level, such as the Doha Declaration at the WTO, the Develop- 
ment Agenda at WIPO, 50 and adverse local initiatives, including the use of com- 
pulsory licensing to permit the production of certain generic drugs in Thailand and 
Brazil and national laws allowing the noncommercial downloading of music. The 
rhetoric used follows classic paths. One common trend is to appeal to fear of crime 
and concerns about safety, associating competitors' goods with the risk of death 
or imprisonment. From this viewpoint, the media storm that has risen during the 
past few years in the United States and Europe denigrating the quality of Chinese 
products, which burst in on Western markets at a time when their competitiveness 
is undeniable and their presence is significantly increasing, may call for some scru- 
tiny. It offers a convincing example of the use of arguments and fears regarding 
quality and safety to influence people's opinion and serve commercial interests. 

Already in the 1960s, when Asian countries where trying to secure the right 
to use intellectual work such as textbooks to meet the educational needs of their 
populations, they were branded by the United States as "pirates." In 1979, the call 
for an "anti-counterfeiting code" was used as an entry point by the United States 
to push the issue of an international agreement on intellectual property during the 
Tokyo Round of the GATT. 51 More recently, the link between counterfeiting and 
terrorism surfaced following the World Trade Center attack. In 2003, INTERPOL 
secretary general, Ronald K. Noble, warned governments that "there [was] grow- 
ing evidence of a link between intellectual property crime and terrorist financing" 
(author's italics). 52 These kinds of association between terms became a staple of 
the political communication spins of the U.S. government over the past decade — 
associations between Iraq and 9/11 for example — and more generally of the neolib- 
eral state, so much so that it is not surprising to hear participants at governmental 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 307 





Let's Terminate Piracy, antipiracy advertisement featuring 
Arnold Schwarzenegger and Jackie Chan (available on-line at 
http://www.youtube.com/watch?v=Wf4pnYiwFiU&feature= 
related; California Commission for Jobs and Economic Growth 
and the Intellectual Property Department). 



or international copyright meetings talk about terrorism as if it were a problem 
with which they were actually dealing, while the equation between "generic" and 
"counterfeit" has been unquestioningly assimilated into the thinking of many 
people in many countries. These propaganda techniques are connected to coer- 
cive measures and tactics aimed at controlling and regulating people's behaviors — 
which represents yet another component of neoliberal rationality. 

Yet another tendency of the neoliberal argument is to convince people that 
there is no alternative to what is offered and what is being done. This is where 
neoliberals have proven efficient at the performative practice of presenting their 
choices as the only realistic fictions available. It is a belief that expresses itself 
in developing countries' attitude toward free trade: For many leaders of develop- 
ing countries, free-trade agreements are perceived as the only possible path to 
secure their country's position in the globalized economy: Not getting into the 
game would mean losing market access and competitiveness, while their neighbors 
are probably keen to launch negotiations with the United States, if they haven't 
already signed an agreement. This sense of inevitability also means that countries 
tend to accept U.S. demands on intellectual property issues once they have gotten 
involved in negotiations. 

Associated with the power of beliefs is the use of statistics expected to reveal 
the economic truth underlying the neoliberal system. To support their assertions, 
advocates for intellectual property restrictions and neoliberal crusaders do not 
hesitate to invoke numbers and statistics, often showing few qualms regarding 
their veracity or the methods used to produce them. The estimated losses of cor- 
porate profits due to counterfeiting and piracy are figures of this sort, regularly 
fed to policy makers as well as to the public, whether in institutional debates or 
in commercials on TV. Numbers are conveyed from the companies to the lobby 
groups and from the industry associations to the government and the media. The 
media reports them, and governments use them in international negotiations. The 
ways these numbers are obtained often lack any semblance of scientific method or 
even a basis in reality, but they are nonetheless rarely questioned. 

Drahos and Braithwaite mention a case in Italy in which the estimates of com- 
pany losses because of video piracy were established based on the assumption that 
for every illegal cassette, there was an unsold movie-theater ticket: If you multiply 
the number of cassettes by the price of a movie ticket, you therefore supposedly 
get the total of the producer's loss on the movie. 53 Similar doubts regarding accu- 
racy can be raised over the economic projections used by the U.S. government or 
industries promoting free-trade agreements. But as Drahos and Braithwaite note, 
skepticism and doubt do not prevent the U.S. trade representative from using the 
figures provided by the industry to promote free-trade agreements or to threaten 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 309 



countries with sanctions through the 301 process, 54 the most convincing argument 
for doing so being that "they [are], after all, the only figures that [are] available." 

This practice of modifying the perception of reality, which occurs under the 
auspices of propaganda, indoctrination, and ideology, was routinely used in the 
process of establishing and maintaining neoliberal hegemony. It provides a good 
example of what Antonio Gramsci called "political questions . . . disguised as cul- 
tural ones," which "as such become insoluble." 55 As Harvey sees it, the Utopian 
arguments of neoliberalism, such as freedom and individual responsibility, have 
served as a justification for and legitimization of the efforts of an economic elite to 
create or to restore its own power. 56 

Thomas Edsall describes how those who brought about the neoliberal revolu- 
tion became organized: 

During the 1970s, business refined its ability to act as a class, submerging competi- 
tive instincts in favor of joint, cooperative action in the legislative arena. Rather 
than individual companies seeking only special favor. . . the dominant theme in the 
political strategy of business became a shared interest in the defeat of bills such as 
consumer protection and labor law reform, and in the enactment of favorable tax, 
regulatory and antitrust legislation. 57 

Instead of being a simple corporatist action, this movement became a political move- 
ment. An anecdote recalled by Jeff Faux in the introduction of The Global Class War 
offers a convincing example of how reliance on class solidarity operates within a 
worldwide elite. During a conversation he had with a corporate lobbyist from Wash- 
ington, D.C., the latter, defending NAFTA, gave what she thought to be the ultimate 
argument: The president of Mexico is "one of us." Hence, his peers had to help him 
and support the agreement. 58 President Carlos Salinas had gone to the same type of 
school (Harvard, in this case) and was an important economic and political player, 
which, according to that lobbyist, made them all part of the same club. 

Thus, there exists a loose network of individuals, not limited geographically, 
who, despite important differences in their origins, lives, experiences, cultures, 
and political views, share enough in terms of their position with regard to the 
market and political power to harbor a feeling of belonging and to act in a con- 
nected and even united way 59 The members of this network, which can be seen 
as what Gramsci called a "fundamental social group," consider themselves to be 
the "organizer[s] of society," striving "to create the conditions most favourable to 
the expansion of their own class," 60 and are often backed by those who are keen 
to compare themselves to this elite, yearn to be part of the club, and thus tend to 
support the elite and the policies it promotes, as if doing so were an elementary 
precondition of their acceptance. 



310 KRIKORIAN 



This class phenomenon is mobilized and maintained according to functional 
rules similar to those described by Monique Pincon-Charlot and Michel Pincon 
in high social classes in France. Society life plays an essential role in the sharing 
of information and relations and in the building of strategies. 61 Members of this 
global governing class do favors for each other not only because they belong to the 
same club, but because doing so helps establish that belonging — and because each 
of the members will at one point or another need a favor in return, and knows 
it. A set of social techniques materializes class functioning and develops the col- 
lective consciousness of belonging among its members. It therefore creates the 
ties and the obligations to stand by each other, the solidarity summoned by the 
lobbyist talking with Faux and that Lloyd Bentsen expressed when he was asked 
why Congress should pass NAFTA: His response was, "One word. And it's spelled 
S-A-L-I-N-A-S." 62 

A new social group does not supplant an older group, but there is a recon- 
figuration of the vision of governing that allows alliances between a new economic 
power— those who got rich or richer through the privatization that occurred with 
the process of establishing the neoliberal hegemony — and the more traditional 
governing elite. 

On the other end of the social spectrum, through free-trade agreements and 
other policies, neoliberalism has reproduced a population of poor individuals 
primarily used as producers deprived of control of the means of production and 
regarded simply as passive consumers of goods. This social group is composed 
of the traditional industrial working class, which, despite the closing of plants in 
developed countries, still exists and endures primitive working and living condi- 
tions in many parts of the world. According to estimates, the job loss in the United 
States from NAFTA has been between five hundred thousand and one million. 63 
Meanwhile, car exports from Mexico to the United States doubled between 1993 
and 1996. At the same time, productivity steadily increased, and wages decreased. 
Sherrod Brown estimates that Mexican workers have faced a 50 percent decline 
in their standard of living since the enactment of NAFTA. Most of the jobs that 
have disappeared in developed countries have not vanished from the surface of 
the Earth. The work is still done, the goods are still manufactured — only the places 
change. Free trade favors this low-cost labor, performed by workers living in free- 
trade zones, but mostly locked within national boundaries. A traditional form of 
exploitation that follows the rules of industrial capitalism under neoliberal gov- 
ernance persists at the peripheries of the knowledge economy, while productiv- 
ity and wages are further dissociated from the costs of production and prices. As 
Brown notes, "when Nike moved all its production overseas, the price of its shoes 
did not decrease." 64 



FREE-TRADE AGREEMENTS AND NEOLIBERALISM 311 



These workers represent a classical form of proletariat that does not possess 
capital and is under the rules of free trade particularly vulnerable to exploita- 
tion. At the same time, by means of intellectual property protections, free-trade 
agreements help to exclude this population from the most liberating and creative 
dimensions of "cognitive capitalism," the capacity to use nonmaterial resources 
to produce freely, without restriction and for one's own interest. 55 A cognitive 
proletariat thus exists under the "information feudalism" described by Drahos 
and Braithwaite. It consists of women and men who manufacture jeans or DVDs, 
auto parts, electronic chips, or medicines and who, under the rules of intellectual 
property, are denied the access to knowledge that would allow them to be more 
than simple consumers with limited access to physical goods. 55 Indeed, the knowl- 
edge—the cognitive capital — necessary for them to develop their own products 
and to produce and sell them at cheap prices to their own advantage is instead 
confiscated by law. 67 

The valorization of privatized knowledge further dissociates the value that is 
attributed to a good on the market from the amount of social labor time neces- 
sary to produce it and from the simple cost of production. This affects immaterial 
goods (the price of a text message, for example), as well as material goods defined 
by immaterial qualities (the price for a pair of brand-name jeans, the cost of a 
patented drug). However, this is not the sort of liberation from the rule of valua- 
tion that puts abundance within the reach of the multitude. 68 The implementation 
of intellectual property rules compartmentalizes access both to knowledge and to 
what can be produced or invented with acquired knowledge. Intellectual property 
barriers reinforce the partition of society into categories of individuals — at least 
two for each type of goods: those who access the knowledge and the goods and 
those who do not or do not do so fully. Two different realities thus coexist: a mar- 
ket of abundance, where money, goods, and ideas flow, and a restricted market, 
where scarcity is the result of the limited capacity of those who constitute it to 
accumulate and use cognitive capital and to afford goods. We might draw an anal- 
ogy with Marx's analysis of the class struggle and say that we see the information 
society "splitting up into two great hostile camps" 69 under the rule of cognitive 
capitalism and neoliberalism. However, this class structure cleaves the traditional 
social classes according to new divides that do not correspond to the habitual fault 
lines, even if they also highlight them occasionally, since what distinguishes peo- 
ple is not necessarily their ability to possess knowledge, but also their capacity to 
control nonrival knowledge or make use of it. 

The expropriation of intellectual property does not affect only the poorest of 
the poor, those who work in sweatshops and have no access to education. One can 
see free-trade agreements as recreating and reinforcing social divides between a 



312 KRIKORIAN 



ruling class that continually strengthens its control and increases its capital accu- 
mulation and a portion of the world population with restricted access and choices 
and affected by increasing inequities. But there is also an important heterogene- 
ity in those affected by the expropriation of intellectual property, a heterogene- 
ity that leads to new fronts along which class confrontations can be seen. Many 
people do not belong to the most precarious social class. They may take part in 
the production of knowledge, but still remain captive consumers of proprietary 
goods, and because they are subject to enclosing and repressive intellectual prop- 
erty laws, they are deprived of influence over the conditions that determine and 
limit their access to knowledge and goods. For instance, they have no control over 
the types of medical innovation that are produced and that often do not neces- 
sarily meet their most urgent medical needs, and they do not control the pric- 
ing of the products and services that they do need, and hence, they can easily be 
excluded from access to them, a phenomenon that affects an increasing portion of 
the middle class in developed countries. 

At the same time, all those who are among the cogs of production of the new 
form of capitalism that has flourished in the context of the knowledge economy, 
including those just discussed, are not just a workforce exploited to accumulate 
capital. Their knowledge, which defines them under this regime, is something that 
they contribute to production (that is, to their own exploitation), but unlike mus- 
cular force or other forms of physical effort, this input is not easily replaceable or 
always exchangeable. 70 Experience and the accumulation of knowledge and know- 
how give a unique character to the creative production of an individual. Part of 
what makes an individual's acts of creation possible — the skills, the thinking, and 
the experience of production itself — is capital for future creation and remains his 
or her own. Even if he or she is not the one who owns the property rights to what 
is produced and is not supposed to share it or use it without authorization, the 
skills, the thinking, and the experience involved in producing it are potentials that 
the individual can mobilize at any time and that others value. 

Hence, the multitude of those who are, to one degree or another expropriated 
and exploited under intellectual property rules do not form a homogeneous class. 
(It is true that even during Marx's time, the "working class" was neither uniform 
nor harmonious, but rather a "mobilizing myth.") 71 While some of the people who 
belong to this category are kept away from the raw materials and tools of the 
knowledge economy, others, involved in the logic and the practices of cognitive 
capitalism, contribute to its production and have thus the ability to turn its "liber- 
ating power" against exclusion. 72 

Both the clever use of this liberating power and the formation of com- 
mon fronts between the various categories of those who suffer exclusion offer 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 313 



interesting avenues, especially in the context of the clash created by free-trade 
agreements, to take advantage of a sort of recomposed class struggle that does 
not involve the classic confrontations, but that allows politicization of the con- 
flicts that arise from appropriation and exclusion in the knowledge economy of the 
information society. 

RESISTANCES 

Mobilizations against free-trade agreements have taken on significant dimensions 
in many countries, bringing together people with HIV/AIDS, health defenders, 
students, farmers, workers, academics, parliament members, local generic produc- 
ers, and, as in the Thai case, even bankers. In some countries, such as Thailand 
or South Korea, these mobilizations were very well organized. In Thailand, strong 
networks of collaboration were developed, sharing information and knowledge 
and building collaborations with civil servants from various institutions, including 
the Food and Drug Administration, the Health Ministry, and the Ministry of Com- 
merce. Over the past few years, public protests and demonstrations have taken 
on increasingly sizeable proportions, and the issue of free-trade agreements has 
become central in national political debates. However, mobilizations and public 
opposition have failed to have a significant impact on the outcome of free-trade- 
agreement negotiations — TRIPS-plus provisions are still included, and agreements 
continued to be signed. 73 

What make the free-trade agreements such an efficient tool to promote neo- 
liberal objectives is inherent in their structural characteristics and the conditions 
of their negotiations. Free-trade agreements are, as the U.S. trade representative 
puts it, "comprehensive": They affect many different domains, from tariffs and 
access to markets to sanitary measures, from trade remedies to the environment, 
from investments to electronic commerce, from intellectual property to govern- 
ment procurement. As I noted before, U.S. trade partners agree to negotiate par- 
ticular aspects such as intellectual property — negotiations from which they have 
little to expect for their own benefit, in most cases — and to adopt the views of 
the United States because they are keen to obtain better tariffs and quotas for 
the goods they export. In this context, it is difficult to give issues such as health 
or education a high profile in negotiations when these are understood by politi- 
cal leaders to be secondary issues. And since the negotiations are kept secret, it 
is also difficult for concerned actors to make their arguments heard about details 
of agreements to which they have no access. Contrary to multilateral negotiations 
such as the ones carried out at the WTO, countries cannot create alliances and 
groups to confront the United States. The one-to-one power relation leaves the 



314 KRIKORIAN 



country negotiating with the United States at a disadvantage, not only because 
of the political or economic power imbalance, but also because of the inequali- 
ties in terms of human and technical resources (expertise, knowledge, and expe- 
rience) that can be mobilized for the negotiations. As Drahos notes, "In bilateral 
trade negotiations between States involving a strong and weak State, generally 
speaking the strong state comes along with a prepared draft text which acts as a 
starting point for the negotiations. ... In order to lower the transaction costs of 
bilateralism the United States has developed models or prototypes of the kind of 
bilateral treaties it wishes to have with other countries." 74 Free-trade-agreement 
talks also constitute an environment within which the use of fear, intimidation, 
make-believe, and threats play a determinant role in the negotiation dynamic. In 
this context, governments are all the more reluctant to take into account the opin- 
ions and requests of representatives of civil society. 

The majority of the movements that contest the increase in intellectual prop- 
erty protection, especially in the context of free-trade agreements, try to draw 
attention to what they consider to be the abuses and dysfunctions of the intel- 
lectual property system. In most cases, they encourage countries to renounce 
provisions that increase protections above WTO standards or they try to promote 
compromises, such as the use of balancing mechanisms and softer provisions that 
would not fatally impede access to knowledge and to knowledge goods, that would 
limit the negative effects of what the United States requires. However, while they 
focus on the issue of access, rarely do these movements openly question the prin- 
ciple of intellectual property or the concept of property itself. Their strategy con- 
sists mostly in demonstrating that, in a number of cases, the intellectual property 
system fails to fulfill its role of promoting and fostering innovation, while with its 
strengthening of protections it increasingly generates social costs and limitations 
on development. Hence, they avoid taking stands that could be seen as ideologi- 
cally stained — as associated with attacks on property as such — which does not 
prevent their detractors from calling them Communists. 75 Apart from exceptions 
such as popular political movements in opposition to free-trade agreements in Latin 
America, 76 the vast majority of those who have become mobilized on the issue of 
intellectual property and free-trade agreements tend to stay away from political 
and ideological rhetoric. While these movements strive to organize mass mobiliza- 
tion in order to affect the negotiation process and to impose resistance, their objec- 
tive is predominantly to make reasonable and constructive criticisms and proposi- 
tions about legal provisions and regulations in order to limit inequities, injustices, 
and inefficiencies, rather than to announce the advent of a politico-economical 
alternative model. Although free-trade agreements are obvious neoliberal vehicles, 
these movements seem to avoid even using the term, as if by doing so they would 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 315 



engage in an ideological battle that would cast them as dogmatic and make them 
lose credibility. They seek inclusionary politics, request their own participation into 
the negotiations, and use a rhetoric that articulates demands for social justice, egal- 
itarian access, or plain decency, but that is predominantly anchored in a technical 
register that allows them to assume the identity of experts on intellectual property 
issues. One of the characteristics of these movements is to manifest a very detailed 
understanding of the legal issues at stake and the legal instruments involved. They 
can speak the language of copyright and patent lawyers. Their strategy is based on 
democratizing this technical knowledge, and in some cases, a large public becomes 
familiar with rather obscure legal concepts, as for example was the case in Thailand, 
where activists made the slogan "CL [compulsory licensing] = life" the message on 
a sticker spread widely throughout the country. Ironically, the pressure exerted to 
increase intellectual property protection thus ultimately contributes to the increas- 
ing knowledge of members of civil society about intellectual property matters and 
motivates their involvement with them. 

While it is the case that most movements do not openly and directly contest 
the political ideology that underlies intellectual property regimes such as the 
TRIPS Agreement or specifically denounce market ethics, and while resistance to 
the escalation of intellectual property restrictions is rarely accompanied by formal 
rejection of the neoliberal economic order or the institutions that favor it, ide- 
ology, as a "narrative about a particular social order," 77 is at the bottom of this 
system and of its efficacy. First, factually, the context of international negotia- 
tions over intellectual property rights is deeply ideologically coded and interlinked 
to the rise of neoliberalism. But moreover, "the extraordinary power of ideology 
itself," as Wendy Brown puts it, plays an important role: Ideology "does not simply 
(mis)represent the world, but is itself productive of the world, and particularly of 
the subject." 78 Thus, any attempt to fight avatars of neoliberal power such as the 
increase of intellectual property rights and the privatization of knowledge requires 
recognition of the way that ideology is used by the intellectual property move- 
ment. Building on the same impetus, it requires us to analyze and assess the modes 
of legitimacy through which this movement naturalizes its domination and the 
place and role that it ascribes to each of us. 

Pointing to inadequacies and tensions between the proclaimed values and the 
concrete policies of neoliberalism may be a way to reach this goal and to under- 
mine its credibility. Neoliberalism encourages state intervention when the mar- 
ket itself generates chaos, a phenomenon regularly observed when financial cri- 
ses threaten financial institutions and losses are socialized as companies or banks 
are bailed out with public money. However, state interventions and pragmatic 
adjustments created to "rescue" firms tend to widen the gap between neoliberal 



316 KRIKORIAN 



theory, as commonly espoused, and practice. One might expect that the disjunc- 
tion between what is understood as neoliberalism in the conventional wisdom and 
disseminated through propaganda and the reality of the policies that neoliberals 
have implemented might, by hint of repetition and because of the increasing pro- 
portion of the consequences, create rifts in representations of neoliberal dogma 
and undermine neoliberal fictions. Nevertheless, despite many indicators that neo- 
liberal doctrine is not fulfilling its promises to secure economic efficiency, 79 the 
lessons taught by such empirical realities do not appear to be learned, nor is the 
enthusiasm or zeal of neoliberals undermined. A further effort is required. 

Such an effort might suggest that critics of increasing intellectual property 
protection should try to oppose one ideology with another and develop a coun- 
terideology to substitute for the dominant one. However, besides the reluctance 
to promote ideologies that is common to many social movements — inherited from 
the critical disenchantment with Communism and socialism that spread since the 
end of the Cold War and that was influenced and encouraged by the denuncia- 
tions led by neoliberals against these ideologies — alternative doctrines have not in 
fact emerged that could directly compete with neoliberalism. 80 If opposition move- 
ments do not want to rely on ideologies, other framing techniques and strategies 
need to be employed to produce cultural changes that could undermine neoliberal 
legitimacy and supremacy in people's minds. 

Neoliberal discursive productions borrow terms from classical liberalism such as 
the central place of the notion of freedom while simultaneously both feeding and 
concealing existing tensions between liberalism and neoliberalism, thus sustaining 
confusion and making it difficult to delegitimize neoliberalism on the basis of inter- 
nal contradictions and gaps between theory and practice. This is one of the particu- 
larities and one of the sources of the efficacy of neoliberalism: to be able to offer a 
fiction that can seem coherent and that at the same time integrates contradictions 
and discrepancies that give it the malleability that allows its strength and durability. 

One way to break the spell of neoliberalism lies in questioning its use of the 
values and concepts that underlie it and in trying to reinvest these values and 
concept with other meanings. Such an approach seems consistent with those 
employed by the movements opposing high levels of protection for intellec- 
tual property rights that, beyond ideology, try to promote basic principles such 
as freedom, equality, justice or organizing concepts such as the commons and 
the public domain and that, for the most part, instead of contesting the principle 
of intellectual property itself, use the fulcrum of access strategically to reframe 
the terms of the debate. Moreover, the context of the debates and conflicts over 
intellectual property appears to be favorable. It is large enough, since it affects so 
many aspects of peoples lives, well-being, and destiny, yet specific enough, since 



FREE-TRADE AGREEMENTS AND NEOLIBERALISM 317 



it implicates a multitude of communities, identities, and particular interests from 
every corners of society, to support an attempt to initiate a process that explores a 
new balance between freedom and property or the relation between freedom and 
equality — to imagine a new blueprint for society. 

The inadequacies and tensions between the proclaimed values and the con- 
crete policies of neoliberalism are at least a part of this favorable context. Pro- 
voking the emergence of global crises whose dimensions are unprecedented and 
whose causes and consequences are more difficult to control, neoliberalism is 
increasingly showing signs of its failures to guarantee economic activity and sus- 
tain the market. Neoliberal legitimacy may finally be ripe to be called into ques- 
tion at a time when "the widening gap between rhetoric (for the benefit of all) 
and realization (the benefit of a small ruling class) [becomes] all too visible." 81 It 
may increasingly be possible to make effective use of the paradoxes and contradic- 
tions between classical liberal orthodoxy and neoliberalism. And when neoliberal 
policies depart so obviously from the obligation to respect neutrality, equity, and 
inclusion that are supposed to characterize a liberal government — not to influence 
competition and to provide to each one the opportunity to take part in it — using 
classical liberal principles against neoliberalism can be an effective way to under- 
mine neoliberalism's pervasive representations and apparent coherence in the 
conventional wisdom. 82 

Liberalism in its classical form and freedom are two concepts that had a seminal 
and organizing importance in political debates and choices in the United States and 
are key notions publicized by neoliberalism. As Wendy Brown emphasizes, "'free- 
dom' has shown itself to be easily appropriated in liberal regimes for the most 
cynical and unemancipatory political ends." Certainly, "the conservative political 
culture ascendant in the United States in the 1980s . . . further narrowed the mean- 
ing of freedom within liberalism's already narrow account." 83 Semantic shifts and 
reinterpretations, depending on the historical context and the use made of these 
terms, maintain ambiguities and confusions. Consequently, there is a risk that 
movements trying to reappropriate these concepts will fail to make clear the dif- 
ference between what they promote and what their opponents invoke, and, con- 
trary to their attempts to offer a counterpoint to neoliberal presentations, may 
reinforce the power of the neoliberal discourse by giving additional legitimacy 
to the concepts upon which it is based. Moreover, reclaiming the classical liberal 
inheritance without adopting a clear position critical of neoliberalism risks main- 
taining the given conditions of neoliberal ascendance insofar that their theoretical 
bases remain grounded in the same ethos. 

Freedom of expression and consumer choice, both classical liberal values, 
are seriously limited in the current world of intellectual property protection. 



318 KRIKORIAN 



Contesting those limits call for enlightening the public about the confusions that 
neoliberalism has perpetuated concerning the classical liberal conception of free- 
dom. It may also require us to explore other frames of reference, questioning 
the definition and the meaning of the freedoms one wants to promote. If we fol- 
low Michel Foucault's advice, freedom can be understood as a (political) practice 
for individuals, a mode of relation between individuals, that empowers them. 84 
Contrary to the tendency that Brown observes among thinkers who came to the 
conclusion that free enterprise is the most valid and worthy option of freedom, 
movements opposed to neoliberalism can adopt freedom as "a social and political 
practice," rather than "an individual good," and thus move away from its rendering 
in classical liberal thought. 85 

In the context of the knowledge economy, understood this way, freedom looks 
like what pirates exercise when using, creating, or spreading material or immaterial 
goods. 86 Put into practice, this freedom represents a form of resistance that may 
stand "in a position of exteriority to power," 87 interfering to some extent with 
the political economy of neoliberal domination by promoting uncontrolled access, 
neither absolving the state of its responsibility to ensure the well-being of its citi- 
zens and to provide justice nor supplanting the need for fair administrative and 
legal systems to encourage innovation, but able to open breaches on some of the 
fronts of neoliberal rationality. Meanwhile, while obviously interfering with the 
logic of distribution, such a practice moves the issue of inequality to the level of 
production, questioning and disrupting old models — including the production of 
the self — and injecting anarchically the production of individuals into the public 
space. 88 Like the mechanical arts as described by Jacques Ranciere, digital tech- 
nologies, when "put into practice and recognized as something other than tech- 
niques of reproduction or transmission," hold the power to "confer visibility on 
the masses, or rather on anonymous individuals." What emerges then are "political 
subjects that challenge the given distribution of the sensible." 89 

But what are the conditions required to exercise this freedom? Who is in a 
position to do so? Or in other words, is the exercise of this freedom possible for 
those — who may be a majority — who are subjected to great social and economical 
inequalities, or would it represent too many risks and increase their vulnerability? 
Those are valid questions. Meanwhile, one may also note that for many reasons 
(from economic conditions to social conditions), the pirate attitude is found more 
frequently among those who reckon they have nothing to lose and everything to 
gain from being pirates, those who, by obligation and in some cases by choice, are 
at the peripheries and even the extreme peripheries of power spheres, rather than 
those who are close to their cores. 90 To this extent, the sociology of this practice 
may contradict the sociology of the current A2K movement. One may wonder if 



FREE-TRADE AGREEMENTS AND NEOLIBERALISM 319 



that creates a real antagonism between the practice of the pirate and the efforts of 
the movement. 

As Lawrence Liang notes, the figure of the pirate provokes serious tensions 
within the A2K movement and within movements that oppose stricter exclu- 
sive rights protections. 91 To adopt or at least to consider as legitimate a practice 
of freedom inspired by the pirate, that is, as not taken as a pure matter of con- 
sumption, can certainly pose some paradoxes for these movements. Notably it 
may eventually call for clarifications as far as their relations with the neoliberal 
regime are concerned. However, without focusing on such tensions and conflicts, 
it is certainly possible for the movements to take the pirate for what he or she 
can provoke, for the "discontinuity in our experience" that pirates introduce in our 
encounters and relations with them. In short, it is possible to welcome the original 
reorganization of our conceptions, spaces, and relations that may emerge from this 
experience. As Maurizio Lazzarato points out, "one falls in love less with the per- 
son than with the possible world she expresses." 92 Likewise, without necessarily 
falling for the pirate's personality as a whole or the totality of the existing forms 
of piracy, without considering his or her modus vivendi or modus operandi as a 
solution in itself, we can consider the options that the pirate offers and that bor- 
rowing from the pirate's practices could generate. 93 From the practices it inspires 
could come new possibilities, "virtuals," Gilles Deleuze would call them; allow- 
ing recruitment at the frontiers of classes, where inequalities are made obvious 
by deprivation, where opposites confront each other (worker/capitalist, owners/ 
exploited) at the "locus of the fight," and where conflicts crystallize and injustices 
are denounced. It is there where an "awakening" may take place to the possibil- 
ity of refusing the roles and models that are assigned to everyone, the functions 
required from each, and where instead it may be possible to develop, reinforce, 
and exercise the power of innovation that individuals possess and that can chal- 
lenge institutionalized powers. 

Without romanticizing or overrating the subversive power of piracy, and while 
asserting that piracy cannot be the only strategy adopted to address extrem- 
ist regimes of intellectual property rights protection and repression, the differ- 
ent forms of political action and personal input that exist in piracy should not be 
dismissed (as they regularly are) because they remain in the shadow, or because 
they are too sporadic, or because they are done for self-gain. They instead can 
be seen as an opportunity to introduce useful disruptions from both a tactical 
and a theoretical point of view — even as a necessary strategy for doing so. This 
may look particularly appealing if one considers that protests against increasing 
and extremist intellectual property rights protections often lead to bureaucratic 
and heavily regulated adjustments to the prevailing regime. Think, for example, 



320 KRIKORIAN 



of the mechanism adopted at the WTO to allow generic export of patented medi- 
cines under compulsory licensing or the prequalification procedure established at 
the WHO to guarantee generic quality and thus trivialize the heavy propaganda 
against generic drugs conducted by the multinational pharmaceutical corpora- 
tions. Practices inspired by the pirates may also help make obvious the realities 
of the new era of digital production, the conflicts it has caused, and the inequali- 
ties institutionalized by the current intellectual property system and by the ten- 
dency to increase those protections. Moreover, the resulting forms of resistance 
can combine with creative processes that can be directly invested by individuals 
and that can favor invention outside of the walls of the increasingly closed intel- 
lectual property regime. In doing so, individuals also generate the power that the 
movement needs to shape and conceptualize the freedom they try to exercise. For 
their part, the intellectual property moguls are not fooled and seem aware of these 
"virtuals." Hence their increasing pressure to enforce intellectual property rights 
and to criminalize those who infringe them. 94 

What could thus emerge in the context of the fight against free-trade agree- 
ments is the constitution of a common front against intellectual property protec- 
tion policies, allying forms of activism such as the practices of piracy that have 
developed under the pressure of exploitation and expropriation typical of the neo- 
liberal order or of cognitive capitalism with others inherited from the industrial 
era. Mobilizations against free-trade agreements such as those that took place in 
Thailand, South Korea, and some Latin American countries already show interest- 
ing alliances between worker-based movements and more classically liberal forms 
of activism. Traditional worker-based movements are often presented as declining, 
and these forms of mobilization have indeed been deeply affected by neoliberal 
offensives since the end of the 1970s, particularly in developed countries. How- 
ever, similar movements arose during the 1980s in countries such as South Korea 
or South Africa and are particularly active in Latin America, to the point where 
they sometimes have taken power. In South Korea, Thailand, and Latin America, 
they have also been an important component of mobilizations against free-trade 
agreements in alliance with various components of civil society that rely on other 
forms of mobilization and contestation. While worker-based mobilizations follow 
the models of traditional political structure and organization, which allow them to 
provoke massive mobilizations across countries, other forms of mobilization show 
an ability simultaneously to address both technical and legal issues and the needs 
of a large spectrum of different social groups and particular constituencies not 
identified with or defined by their work. 

Traditional forms reactivated in the context of the neoliberal restructuring of 
classes thus can combine with forms of protest that originate in sections of the 



FREE-TRADE AGREEMENTS AND N EOLIBERALISM 321 



society involved in knowledge production (and more imbued with the classical 
liberal political tradition). As I said before, some of these actors are not always 
replaceable because of their creative potential, and as a consequence, their rec- 
ognized position as key elements in the creation of knowledge goods confers on 
them a special— legitimized — position as critics of its distribution, but, above all, 
as efficient creators who can fuel new movements. Although they develop argu- 
ments against the terms of the commodification, privatization, and financialization 
of knowledge goods that do not necessarily place them outside of the realm of the 
dominant political system, and although they do not reject as a whole the modes 
of consumption and trade that go with capitalism, by engaging in reinterpretation 
or redefinition of notions that are at the heart of the system that justifies neolib- 
eralism, they may institute new forms of adverse interaction with it. By engaging 
in a routine practice of freedom, these alliances may help unleash practices that 
could override the boundaries of the enclosures imposed by intellectual property 
protection, 95 favoring the learning of knowledge, the empowerment and a bet- 
ter equalization of access to opportunities, while they also contribute to opening 
breaches to a counterculture. 

Without considering strategies based on class struggle as obsolete or sim- 
ply renouncing them, the alliance of those who directly challenge competition 
and private property and condemn the resulting alienations, those who promote 
new forms of collaboration between individuals, new forms of work and creation 
using knowledge technologies, and those who, inspired by the practices of pirates, 
engage in practices of freedom that disrupt neoliberal rules of appropriation and 
the control of access could result in the increase tenfold of the power of an A2K 
movement. Neoliberalism by virtue of the inequalities and discriminations it pro- 
duces will thus have favored the emergence of a contestation specific to it, 96 and 
an A2K mobilization using every available tactic and strategy could organize itself 
as a creative force challenging knowledge capitalism and contributing to its reorga- 
nization. Reactions to the escalation of protections on intellectual property rights 
and to the intensification of the repression of intellectual property infringements, 
whether they are formally gathered under the A2K umbrella or not (or not yet), 
hold the seeds that could realize this efflorescence and thus help show a way out 
to the neoliberal order, which is certainly as rigid as it is unstable. 



322 KRIKORIAN 



NOTES 

The author is grateful to Laura Davis and Harriet Hirshorn for their assistance in translating 
this piece into English. 

1 Peter Drahos, with John Braithwaite, Information Feudalism: Who Owns the Knowledge Econ- 
omy? (London: Earthscan: 2002), p. 74. 

2 For example, Indonesia adopted intellectual property laws while subjected to the coloniza- 
tion of the Netherlands, while the Philippines passed laws to protect intellectual property 
while being under the domination of Spain. See Jakkrit Kuanpoth, 'The Political Economy of 
the TRIPS Agreement: Lessons from Asian Countries," in Christophe Bellmann, Graham Dut- 
field, and Ricardo Melendez-Ortiz (eds.), Trading in Knowledge: Development Perspectives on 
TRIPS, Trade, and Sustain ability (London: Earthscan, 2003), p. 47. 

3 The Paris Convention for the Protection of Industrial Property is available on-line at http:// 
www.wipo.int/esport/sites/www/treaties/en/ip/paris/pdf/trtdocs_wo020.pdf (last 
accessed May 4, 2009). D. M. Mills, "Patents and Exploitation of Technology Transferred 
to Developing Countries (in Particular those of Africa)," Industrial Property 24 (1985): p. 
120, cited in Kumariah Balasubramaniam, 'Access to Medicines and Public Policy: Safeguards 
under TRIPS," in Bellmann, Dutfield, and Melendez-Ortiz (eds.), Trading in Knowledge, p. 140. 

4 Drahos and Braithwaite, Information Feudalism, p. 75. 

5 Ibid., p. 81. 

6 Ibid., p. 133. 

7 David Harvey, A Brief History of Neoliberalism (Oxford: Oxford University Press, 2005). 

8 Drahos and Braithwaite, Information Feudalism, p. 195. 

9 Gaelle Krikorian and Dorota Szymkowiak, "Intellectual Property Rights in the Making: The 
Evolution of Intellectual Property Provisions in US Free Trade Agreements and Access to 
Medicine," Journal of World Intellectual Property 10, no. 5 (September 2007). 

10 Free-trade agreements are not the only bilateral vehicle used by the United States to increase 
intellectual property protection in other countries. Beside bilateral agreements on intellec- 
tual property, bilateral investment treaties that the United States negotiated with developing 
countries during the 1980s, including intellectual property as an investment activity, are other 
negotiating contexts in which provisions were included protecting intellectual property. How- 
ever, for reasons that I will develop later here, free-trade agreements are probably one of the 
most efficient ways to obtain other countries' agreement on very detailed legal dispositions. 

11 Drahos and Braithwaite, Information Feudalism, p. 83. 

12 Ibid., p. 87. 

13 U.S. Patent and Trademark Office, "Special 301," available on-line at http://www.uspto.gov/ 
web/offices/dcom/olia/ir_trade_special30l.htm (last accessed May 4, 2009). 

14 The Generalized System of Preferences, which has existed since 1976, is a program through 
which, since the Trade and Tariff Act of 1984, designated countries can gain duty-free export 
to the United States for some of their products in return for incorporating protection of U.S. 
intellectual property as a criterion for eligibility. Drahos and Braithwaite, Information Feudal- 
ism, pp. 86-87 Being placed under Section 306 monitoring is for countries subject to a section 
301 investigation, for which measures have been agreed on with the United States to resolve 
the matter. If the U.S. trade representative concludes that measures are not satisfactorily 
undertaken, sanctions can be adopted. 



FREE-TRADE AGREEMENTS AND NEOLIBERALISM 323 



15 19 U.S.C. § 3802 (b) (4) (a). The Trade Act of 2002 is available on-line at http://frwebgate. 
access. gpo.gov/cgi-bin/getdoc.cgi?dbname=l07_cong_public_laws&docid=f: pub I210. 107 (last 
accessed May 4, 2009). 

16 The United States signed many bilateral agreements on intellectual property during this 
period: Korea, 1986; Poland, 1990; Mongolia and Sri Lanka, 1991; Albania, Armenia, Czechoslo- 
vakia, China, Romania, Russia, and Taiwan, 1992; Azerbaijan and Tajikistan, 1993; the Philip- 
pines, Cambodia, Jamaica, Latvia, Lithuania, Thailand, and Trinidad and Tobago, 1994; China, 
1995; Peru, 1997; and Nicaragua, 1998. See http://www.cptech.0rg/ip/health/c/agreements 
(last accessed May 5, 2009). 

17 The Caribbean Basin Economic Recovery Act concluded two years earlier was only a one-way, 
duty-free trade agreement. 

18 Fast-track authority for international trade agreements before Congress makes them subject 
to an up-or-down vote, but not to amendment. 

19 The Southern African Customs Union includes Botswana, Lesotho, Namibia, South Africa, 
and Swaziland. 

20 Jeffrey J. Schott, 'Assessing US FTA Policy: Free Trade Agreements," in Jeffrey J. Schott (ed.), 
Free Trade Agreements: US Strategies and Priorities (Washington, D.C. Institute for Interna- 
tional Economics, 2004), p. 359. 

21 Frederick M. Abbott, "The Doha Declaration on the TRIPS Agreement and Public Health and 
the Contradictory Trend in Bilateral and Regional Free Trade Agreements," Occasional Paper 
14 (April 2004), Friends World Committee for Consultation (Quakers), available on-line at 
http://www.quno.org/geneva/pdf/economic/Occassional/TRIPS-Public-Health-FTAs.pdf; 
Jean-Frederic Morin, "Tripping Up TRIPS Debates: IP and Health in Bilateral Agreements," 
International Journal of Intellectual Property Management l, nos. 1-2 (2006), available on-line 
at http://www.atrip.org/upload/files/activities/montreal2005/Morin%20IP-health-FTA.doc 
(both last accessed March 3, 2010); Krikorian and Szymkowiak, "Intellectual Property Rights 
in the Making." 

22 David Vivas-Eugui, "Regional and Bilateral Agreements and a TRIPS-Plus World: The Free 
Trade Area of the Americas (FTAA)," TRIPS Issue Papers l, Quaker United Nations Office 
(QUNO), Quaker International Affairs Program (QIAP), International Centre for Trade and 
Sustainable Development (ICTSD) (2003), available on-line at http://www.quno.org/ 
geneva/pdf/economic/Issues/FTAs -TRIPS-plus-English.pdf; Oxfam, "Undermining Access to 
Medicines: A Comparison of 5 US FTAs," technical briefing note (2004), available on-line at 
http://www.twnside.org.sg/title2/FTAs/Intellectual_Property/IP_and_Access_to_Medicines/ 
UnderminingAccessToMedicines.pdf (both last accessed March 3, 2010); Abbott, "The Doha 
Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilat- 
eral and Regional Free Trade Agreements." 

23 Ha-Joon Chang, Bad Samaritans: The Myth of Free Trade and the Secret History of Capitalism 
(New York: Bloomsbury Press, 2008), p. 127. 

24 Under the previous Republican-controlled Congress, trade-related legislation passed by 
extremely thin majorities. Congressional votes on the Central America Free Trade Agree- 
ment, on the agreement with Oman, and on other free-trade agreements in 2006 indicated an 
increasingly negative attitude toward free-trade agreements among Democrats. 

25 Drahos and Braithwaite, Information Feudalism; Susan K. Sell, Private Power, Public Law: The 
Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003). 



324 KRIKORIAN 



26 Drahos and Braithwaite have shown the complexity of this relationship and the fact that, for 
example, in the context of the 301 process, the U.S. administration is not ready to become 
totally dependent on or indentured to industry. It still has, to some extent, to take into 
account its image abroad and to preserve relations with other countries from seeming too 
confrontational. Diplomatic, economic, and political issues explain, for instance, the fact that 
the U.S. trade representative cannot punish every lapse from what the companies consider 
as proper intellectual property rights protection and sufficient intellectual property rights 
implementation. Drahos and Braithwaite, Information Feudalism, pp. 99-100. 

27 Ibid., pp. 115-19. 

28 Ibid., pp. 125 and 215. 

29 Chang, Bad Samaritans, p. 97. 

30 Jeff Faux, The Global Class War: How America's Bipartisan Elite Lost Our Future — and What It 
Will Take to Win It Back (Hoboken, NJ: John Wiley and Sons, 2006). 

31 Wendy Brown, Les habits neufs de la politique mondiale: Neoliberalisme et neo-conservatisme 
(Paris: Les Prairies Ordinaires, 2007), p. 51. 

32 Ibid., p. 98. 

33 Ibid., pp. 52 and 97 

34 Michel Foucault, Naissance de la biopolitique: Cours au College de France, 1978-1979 (Paris: 
Gallimard, Seuil, 2004) pp. 142-43, available in English as The Birth of Biopolitics: Lectures 
at the College De France, 1978-1979, trans. Graham Burchell (New York: Palgrave Macmillan, 
2008). 

35 See Marshall A. Leaffer, "Protecting United States Intellectual Property Abroad: Toward a 
New Multilateralism," Iowa Law Review 76, no. 273 (1990: p. 277 

36 Drahos and Braithwaite, Information Feudalism, p. 63. 

37 Sell, Private Power, Public Law, pp. 67-74. 

38 Drahos and Braithwaite, Information Feudalism, p. 87 

39 Ibid., p. 166. 

40 Sell, Private Power, Public Law, pp. 67-72. 

41 Drahos and Braithwaite, Information Feudalism, p. 87 

42 Ibid., p. 89. 

43 Ibid., p. 69. 

44 President Ronald Reagan, "Message to the Congress on America's Agenda for the Future," 
available on-line at http://www.aegis.com/topics/timeline/RReagan-020686.html (last 
accessed May 6, 2009). 

45 Harvey, A Brief History of Neoliberalism, p. 62. 

46 White House Office of the Press Secretary, "Remarks by President Clinton, President Bush, 
President Carter, President Ford, and Vice President Gore in Signing of NAFTA Side Agree- 
ments," September 14, 1993, available on-line at http://www.historycentral.com/Documents/ 
Clinton/SigningNaFTA.html (last accessed May 15, 2009). 

47 See Lawrence Liang's essay "Beyond Representation: The Figure of the Pirate" in this volume. 

48 See Peter Drahos's essay, "TP World' — Made byTNC Inc.," in this volume. 

49 Antipiracy advertisements offer different types of narrative. One invites you to be on the good 
side — the one with Arnold Schwarzenegger and Jackie Chan fighting piracy. See "Let's Termi- 
nate Piracy," available on-line at http://www.youtube.com/watch?v=Wf4pnYlwFiU&feature 
=related. Others discourage you from joining the bad side, the side of the criminals and those 



FREE-TRADE AGREEMENTS AND NEOLIBERALISM 325 



who help, encourage, and invite them: "You wouldn't steal a car You wouldn't steal a hand- 
bag. . . . You wouldn't steal a television. . . . You wouldn't steal a DVD. . . . Dowloading pirated 
films is stealing. . . . Stealing is against the law. . . . Piracy. It's a crime." See "Piracy: It's a Crime, 
available on-line at http://www.youtube.com/watch?v=iPcHhOBd-hI). "Buy a pirate DVD and 
you are inviting crime into your neighborhood," warns a British antipiracy ad, with vivid illus- 
trations of other kinds of crime with which it equates DVD piracy See "The Market," available 
on-line at http://www.youtube.com/watch?v=yXiHlY6lHqk (all last accessed May 6, 2009). 

50 Susan K. Sell, "The Global IP Upward Ratchet, Anti-Counterfeiting and Piracy Enforcement 
Efforts: The State of Play," IQsensato Occasional Papers No. l (June 2008), p. 4, available 
on-line at http://www.twnside.org.sg/title2/intellectual_property/development.research/ 
SusanSellfinalversion.pdf (last accessed May 6, 2009). 

51 Drahos and Braithwaite, Information Feudalism, p. 84. 

52 Interpol media release, July 16, 2003, "INTERPOL Warns of Link between Counterfeiting and 
Terrorism. Cites Evidence That Terrorists Fund Operations from Proceeds," available on-line 
at http://www.interpol.int/public/icpo/pressreleases/pr2003/pr2003i9.asp (last accessed 
May 6, 2009). 

53 Drahos and Braithwaite, Information Feudalism, p. 97. 

54 Ibid., p. 98. 

55 Antonio Gramsci, Selections from the Prison Notebooks (New York: International Publishers, 
1971), p. 149. 

56 Harvey, A Brief History of Neoliberalism, p. 19. The view that, as a reaction to Keynesian 
policies, neoliberalism can be seen as aiming at the restoration of the political and economic 
power of an elite was first developed by Gerard Dumenil and Dominique Levy in Crise et sor- 
tie de crise: Ordre et desordres neoliberaux (Paris: Presses Universitaires de France, 2000). 

57 Thomas B. Edsall, The New Politics of Inequality (New York: W. W. Norton, 1984), p. 128, quoted 
in Harvey, A Brief History of Neoliberalism, p. 48. 

58 Faux, The Global Class War, p. 1. 

59 Rick Fantasia, "Quand l'universite reproduit les elites," Maniere de Voir: Le Monde Diploma- 
tique 99 (June-July 2008): pp. 48-52. 

60 Gramsci, Selections from the Prison Notebooks, p. 5. 

61 Michel Pingon et Monique Pincon-Charlot, Les ghettos du Gotha: Comment la bourgeoisie 
defend ses espaces (Paris: Seuil, 2007). 

62 Sherrod Brown, Myths of Free Trade: Why American Trade Policy Has Failed (New York: New 
Press, 2004), p. 144. 

63 Sherrod Brown, p. 151. Brown uses analyses from the U.S. Department of Labor and the Eco- 
nomic Policy Institute. 

64 Ibid., pp. 72, 152, 153, 157 

65 The notion of "cognitive capitalism" was developed by Yann Moulier Boutang in a series of 
articles published in the journal Multitudes and later gathered and elaborated in Le capital- 
isme cognitif (Paris: Editions Amsterdam, 2007). Cognitive capitalism is based on the accumu- 
lation of immaterial capital. The management of knowledge and of information technologies 
to control all forms of production and accumulation, whether it is selling wheat on the market 
or stock exchange transactions, is at the heart of cognitive capitalism. One of the elements 
that manifests the emergence of this new form of capitalism is the importance that issues of 
intellectual property protection have taken in the past decades, together with the tensions 



326 KRIKORIAN 



that came along with the increase in these protections (p. 73). Industrial capitalism is not dis- 
appearing, but coexists with this new form and is reconfigured by it— relocated, reorganized, 
become subaltern (p. 74). For many people, including workers whose job is still to transform 
material resources into material goods, the accumulation of immaterial capital essential to 
cognitive capitalism is often prohibited by interdiction of access to and free use of knowledge 
through the enforcement of intellectual property protections and the criminalization of vio- 
lations of intellectual property rights. 

66 Sean M. Flynn shows how in highly unequal society "the legal right creates rational eco- 
nomic incentives to price the vast majority of consumers out of access." See his essay, "Using 
Competition Law to Promote Access to Knowledge," in this volume. 

67 In the best-case scenario, under license, some are allowed to make a controlled use of the 
knowledge needed to reproduce goods. 

68 Free and unrestricted access by the multitude to a product de facto leads to the dismantling 
of the rules of valuation and even of the empire of property, since it takes away from prop- 
erty the power that it confers on the owner. See the interesting discussions by Pierre Zaoui 
in "A propos de quelques paradoxes . . . ," Mouvements 11 (October 2007), available on-line at 
http://www.mouvements.info/A-propos-de-quelques-paradoxes.html (last accessed March 
3, 2010). 

69 Karl Marx and Friedrich Engels, The Communist Manifesto, ed. Samuel H. Beer (Arlington 
Heights, IL: Harlan Davidson, 1955), p. 10. 

70 Moulier Boutang, Le capitalisme cognitif, p. 131. 

71 Ibid., p. 164. 

72 Ibid,, p. 152. 

73 At the time this article was written, however, U.S. trade negotiations were seriously slowed 
down. Indeed, the fast-track procedure, which was in effect from 1975 to 1994 and which was 
restored in 2002, had expired on July l, 2007. The U.S. trade representative needs to wait for 
its restoration before starting intensive bilateral negotiations again. 

74 Peter Drahos, "BITs and BIPs — Bilateralism in Intellectual Property," Journal of World Intel- 
lectual Property 4, no. l (2001): p. 794, also available on-line at http://www.anu.edu.au/ 
fellows/pdrahos/articles/pdfs/200lbitsandbips.pdf (last accessed May 7, 2009). 

75 This is not a new tactic. Drahos recalls that at the time when the developing countries had 
became the majority within WIPO and were making efforts to promote reforms that would 
have favored them more than the existing international intellectual property rules, repre- 
sentatives of industry, namely the chairman and president of Pfizer International, did not 
hesitate to define the organization "as the representative of 'international socialism' when it 
came to intellectual property rights." Drahos and Braithwaite, Information Feudalism, p. 61. 

76 Whether it was against the North American Free Trade Agreement (NAFTA), the Free Trade 
Area of the Americas (FTAA), CAFTA or the FTA between the Andean countries and the 
US, Latin America has been the scene of important popular political mobilizations against 
trade agreements and denunciations of neoliberal policies. The Zapatistas, the landless peas- 
ant movement in Brazil, the indigenous movements of Bolivia and Ecuador, the unemployed 
workers' activists in Argentina {piqueteros), and many others rallied against FTAs. The issue 
of the FTAs became a polarizing issue in national political debates, including during presi- 
dential elections (Costa Rica, Peru, Ecuador). Demonstrations, massive in some cases, were 
organized in many countries (Costa Rica, Peru, El Salvador, Guatemala, Bolivia, Colombia, 



FREE-TRADE AGREEMENTS AND N EO LIBERALISM 327 



Ecuador, Honduras). Mobilizations even led to popular referendum in some countries (Colom- 
bia, Ecuador, Costa Rica). 

77 Brown, Les habits neufs de la politique mondiale, p. 142. 

78 Ibid. 

79 Crises that can be attributed directly or indirectly to neoliberal reforms forced on developing 
countries have been numerous, but of course, these examples pale since the subprime disas- 
ter and the subsequent international financial and economic crisis. 

80 Latin American movements opposing free-trade agreements are in some cases close to center 
and left coalitions that are in power and govern. They are critical of neoliberalism and draw 
their political agendas from the traditional left. Some rely on Communist and socialist ideolo- 
gies, some try to promote a new left and alternatives to the existing political chessboard, cre- 
ating in some cases new political parties, for example, the Citizens' Action Party — the Partido 
Accion Ciudadana — in Costa Rica. However no new alternative ideology presented as such 
seems to be on the horizon. 

81 Harvey, A Brief History of Neoliberalism, p. 203. 

82 Michel Feher, S'apprecier: Pourquoi et comment epouser la condition neo-liberale (Paris: La 
Decouverte, forthcoming). 

83 Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princ- 
eton University Press, 1995), pp. 5 and 9. 

84 Michel Foucault, "Space, Knowledge, and Power," interview by Paul Rabinow, in Paul Rabi- 
now (ed.), The Foucault Reader (New York: Pantheon, 1984), p. 245. 

85 Brown, States of Injury, p. 13. 

86 Freedom looks this way insofar as pirates do not reinforce monopoly hegemonies by spread- 
ing the standards of those hegemonies and cultivating public taste for them. 

87 Brown, States of Injury, p. 22. 

88 See Lawrence Liang's essay "The Man Who Mistook His Wife for a Book" in this volume. 

89 Jacques Ranciere, The Politics of Aesthetics: The Distribution of the Sensible, trans. Gabriel 
Rockhill (New York: Continuum, 2004), pp. 32 and 40. 

90 I may not be rich enough to buy the software I want in my computer, but because I belong 
to a university and because my research unit already has bought Microsoft Office, I can get 
through it a license for only sixty euros. It is more than tempting then to acquire it that way 
instead of hacking it or using open-source alternatives. 

91 See Liang, "Beyond Representation." 

92 "On tombe amoureux moins de la personne que du monde possible qu'elle exprime." Maurizio 
Lazzarato, Les revolutions du capitalisme (Paris: Les Empecheurs de Penser en Rond, 2004), p. 17. 

93 In "Beyond Representation: The Figure of the Pirate," Lawrence Liang suggests that we ask 
"not what piracy is, but what piracy does." 

94 As Peter Drahos notes in "TP World' — Made by TNC Inc.," "Increasingly, criminal-law- 
enforcement agencies have begun to play a much greater role in enforcement as states have 
moved down the path of criminalizing the infringement of intellectual property." 

95 After all, some of the most innovative forms of production and consumption lately have 
come more from Indian pirates, the Nigerian movie industry, free-software movements, and 
Brazilian DJs, rather than from the intellectual property establishment. 

96 Feher, S'apprecier. 



328 KRIKORIAN 



Information/Knowledge 

in the Global Society of Control: 

A2K Theory and the Postcolonial Commons 

Jeffrey Atteberry 



The international intellectual property regime has approached a historical, politi- 
cal, and legal conjuncture whose negotiation will crucially affect the distribution of 
both knowledge and surplus value in the emerging globalized system of informa- 
tional capitalism. 1 The access to knowledge movement (A2K) has emerged in this 
context as a force advocating fundamental changes in the international intellectual 
property regime. An important, if not central component of A2K theory has been 
its support for an information commons. As the A2K movement has become global- 
ized, it has increasingly identified its promotion of an information commons with 
the interests of the developing world. Many critics, however, have begun to reflect 
upon various tensions between an A2K model of development and the proposals 
of other reform movements within international intellectual property circles. The 
most notable, perhaps, are the latent tensions between A2K and the movement 
to protect so-called "traditional knowledge." 2 In short, while the concept of the 
commons implies a certain curtailment of property rights, many proposals for the 
protection of traditional knowledge imply the creation of new property rights. 

These tensions might begin to be resolved, I would suggest, by a critical assess- 
ment of the concept of the commons. Despite the importance of the information 
commons to A2K's discourse, however, there has been scant theoretical work on 
the material and ideological importance of the commons to the historical devel- 
opment of colonialism. Such a perspective will become ever more important as 
the A2K movement progressively networks with a number of other movements 
that have emerged from the legacy of colonialism and that continue the struggle 
against it in its various new guises. Without a theoretical awareness of how the 
A2K movement's own discourse is rooted in this history, the movement runs the 
risk — despite its best intentions — of becoming ideologically conscripted by the 
forces of informational imperialism, rather than resisting them. 



329 



At present, a latent tension lurks between the A2K movement's theoretical and 
political practices. This tension results, I suggest, at least in part from an insuffi- 
ciently critical relationship to the historical and social context of the movement's 
own formation. Socially, the bulk of A2K theory has been articulated from within 
the Global North, where the transformations attending the emergence of the infor- 
mation economy have reached practically all levels of society. The A2K move- 
ment's theoretical resources have, in significant part, been drawn from the liberal 
traditions of law and political economy. Moreover, the development of A2K theory 
has been informed by the emergence of open-source software and the changes in 
the social relations of production wrought by peer-to-peer networking. In short, 
the production of digital goods presents the possibility of an alternative to the 
traditional commodity production that has characterized industrial capitalism. At 
present, however, these transformations also have been centered on the whole in 
the Global North. As A2K groups have sought to coordinate and consolidate their 
critiques in a global context, voices emanating from other critical traditions have 
begun to be heard within the A2K movement, and the movement has politically 
aligned itself on numerous fronts with various groups from the developing world. 
In order to forge truly progressive alliances as it enters this global terrain, the A2K 
movement needs to develop a critical understanding of the ideological roles its 
own theoretical resources have played in the historical struggle that the movement 
is now entering. 

The A2K movement has come to use "the commons" — a theoretical construct 
with a long ideological history rooted in the development of capitalist imperial- 
ism—as a figure for representing the interests of the developing world. In such 
situations, Gayatri Spivak tells us that two "irreducibly discontinuous" senses of 
"representation" must be rigorously tracked: "representation as 'speaking for,' as 
in politics, and representation as 're-presentation,' as in art or philosophy." 3 In 
speaking for the subaltern, the First World intellectual necessarily re-presents her 
as an object of discourse. The subaltern appears in the form of a figure. A danger 
then lurks in ignoring "this double session of representations," the danger of fail- 
ing to recognize the figures as "subject formations that micro logically and often 
erratically operate the interests that congeal the macrologies." 4 Spivak's basic 
point, despite its philosophically dense expression, is one that is familiar to us in 
other guises. For example, relationships of representation (such as that between 
a lawyer and a client) are necessarily fraught with ethical perils. Those dangers 
are only magnified when (as with class-action lawsuits or certain public-interest 
legal practices) the representative is in effect self-appointed. In these situations, a 
panoply of possible subterfuges may subvert the process, despite the best inten- 
tions of everyone involved. 



330 ATTEBERRY 



The basic lesson is the same when one leaves the confines of the law for the 
realm of global politics, even if the mechanics of the problem are more complex 
and the play of forces more subtle. The subterfuge lurks in the figures of repre- 
sentation themselves, that is, the discourse that is used by the self-appointed 
representative to represent the represented. Without a critical reflection on the 
ideological character of our own discourse, we risk not understanding how our 
figures of representation are historically produced within the global structures 
of power and therefore not understanding how they are potentially recuperable 
within them. In other words, we run the risk of confusing, in Louis Althusser's 
terms, the "object of knowledge" with the "real object." 5 These figures are the 
products of a social and historical reality that stamps them with the ideological 
imprimatur of their production. As a result, conceptual figures that would appear 
to be full of critical potential are continually, if not immediately, reappropriated 
by the dominant ideology and deployed to restore the existing hegemony within a 
historically new social formation. 6 This process is inevitable, because it is nothing 
less than the material history of ideologies as such. In the case of the A2K move- 
ment, the concern then becomes how the figure of the commons may ideologically 
operate to reinscribe the movement's efforts to represent the developing world 
within the ongoing historical development of capitalist imperialism. 

The successful negotiation of the current moment therefore requires a histo- 
ricized discursive analysis of the conceptual terms shaping the present struggle 
over the international intellectual property regime. In "Can the Subaltern Speak?" 
Spivak's reading of the sati (the ritually self-sacrificing widow) demonstrates how, 
in legally abolishing the practice, the British produced a figure of the subaltern 
woman who needed the protection of the British state apparatus. The appearance 
of the sati within the British cultural and legal imagination, Spivak contends, "has a 
clear and complex relationship with the changeover from a mercantile and commer- 
cial to a territorial and administrative British presence" in India. 7 The figure of the 
sari emerged at a moment when the basic structures of the British colonial project 
were changing. Widow sacrifice was abolished in 1827. 8 At the same moment, the 
East India Company was in the process of losing its monopoly control over India. 9 

The transition from the colonial rule of the East India Company to the estab- 
lishment of the British Empire was accompanied by a corresponding shift in the 
discursive strategies of legitimation, a shift from a rhetoric of profit to one of civi- 
lizing humanitarianism and enlightened legal order. ,0 The figure of the sari was one 
discursive fulcrum advancing this transition. Through the figure of sati, "Imperial- 
ism's image as the establisher of the good society is marked by the espousal of the 
woman as object of protection from her own kind." 11 The ideological persistence of 
this figure (sari) and the object of knowledge/protection that it created (the "Third 



A2K THEORY AND THE POSTCOLONIAL COMMONS 331 







English colonies (The Granger Collection). 



World woman") continues to shape relations between the Global North and South 
as patriarchal in character. Similarly, in the current moment, the A2K movement 
represents the object of its protection as the "public domain," which is theoreti- 
cally conceptualized through the figure of "the commons." The "commons," how- 
ever, has a complex historical relationship with capitalist imperialism. The critical 
issue, therefore, is how the persistence of the commons within the A2K move- 
ment's theoretical discourse may unintentionally continue the ideological work of 
historically reproducing the colonizer-colonized relationship in a manner that is 
consistent with the relations of production that characterize our current globalized 
order or information imperialism. 

HISTORICIZING ENCLOSURE 

One of the defining tropes of the A2K movement has come to be "the second 
enclosure of the commons." Expressing a concern over intellectual property rights 



332 



ATTEBERRY 



encroaching upon territory that had previously been considered safely a part of 
the public domain, a number of scholars began to employ the figure of an "enclo- 
sure of the commons" to discuss this trend. 12 The analogy serves an important 
critical function in revealing the fundamental role that intellectual property plays 
in the development of informational capital. At the same time, however, the trope 
of a new "enclosure of the commons" works a potentially mystifying ideological 
effect on the A2K movement when it engages the political economy of global- 
ized informational capital. As James Boyle explains, the first enclosure movement, 
which took place in stages in England from the fifteenth to the nineteenth centu- 
ries, was the long historical "process of fencing off common land and turning it into 
private property" 13 The analogy from the current moment to the historical enclo- 
sure of the commons rests upon the observation that "once again things that were 
formerly thought of as either common property or uncommodifiable are being cov- 
ered with new, or newly extended, property rights." 14 As a general proposition, 
this comparison is true enough, but when pursued with a historically informed 
rigor, the analogy of the "second enclosure movement" reveals deeper ambiguities 
within the current historical moment with which A2K theory must contend. 

A rigorous treatment of the analogy reveals the central role of the current 
intellectual property regime in the development of the informationalist mode 
of capitalist production. The English enclosure movement is the subject of some 
of the most dramatic pages of Marx's Capital. Marx describes in great detail the 
violent processes, both legal and extralegal, through which "the proletariat [was] 
created by the breaking-up of the bands of feudal retainers and by the forcible 
expropriation of the people from the soil." 15 In the structure of Marx's argument, 
the English enclosure movement serves as the paradigmatic example of a more 
general process that Marx calls "primitive accumulation [ursprungliche Akkumula- 
tion]." 16 This process creates the necessary preconditions for the establishment of 
capitalist relations of production. European society transitioned from feudalism to 
capitalism through the process of primitive accumulation. As Marx explains," The 
capital-relation presupposes a complete separation between the workers and the 
ownership of the conditions for the realization of their labor. As soon as capital- 
ist production stands on its own feet, it not only maintains this separation, but 
reproduces it on a constantly extending scale. . . . So-called primitive accumulation, 
therefore, is nothing else than the historical process of divorcing the producer 
from the means of production." 17 

Through the enclosure movement, the feudal peasantry was transformed into the 
wage-earning proletariat by being dispossessed of their communal property rights 
in the commons. As such, primitive accumulation creates the basic social relations 
that form the basis of capitalist production. Marx stresses, however, that the term 



A2K THEORY AND THE POSTCOLONIAL COMMONS 333 



urspriingliche, which is typically translated not as "primitive" but "original," should 
not be understood as designating a process that is simply relegated to the prehistory 
of capitalism. Rather, it is a process that, once begun, capitalism must continually 
reproduce and repeat on more levels as capitalism territorializes ever new terrain. 

In this respect, the "second enclosure movement" is more than an analogy 
to the first; it is the reproduction of the same historical process on an extended 
scale as capitalism transitions into an informationalist mode of development and 
submits the "intangible commons of the mind" to its inexorable logic. 18 Just as 
the historical enclosure movement transferred real property, which provided the 
raw materials for production, into the hands of the emerging bourgeoisie, the cur- 
rent expansion of intellectual property protections is having the similar effect of 
concentrating control over information, which is the raw material for production 
in the informational age. From patents on the human genome, 19 and from busi- 
ness methods to the Digital Millennium Copyright Act and the Trademark Dilution 
Revision Act, 20 the scope and strength of intellectual property keeps expanding in 
ways that separate the means of knowledge production from the greater portion of 
the people. 21 In deploying the figure of a "second enclosure movement" as a rhe- 
torical way of deploring the expansion of intellectual property rights, therefore, 
those who use the figure imagine themselves, at least implicitly, on the side of 
"Marx" against the violent and unjust of effects of subjecting the realm of knowl- 
edge production to a capitalist regime of private property. The danger, however, is 
that this self-image, as long as it remains uncritical, may not end up corresponding 
in material fact to the position that the A2K movement's theory may otherwise 
prescribe for it. This risk is nothing other than the ever-present problem of ideo- 
logical inscription in the strictest Althusserian sense. 22 

Precisely because primitive accumulation is an ongoing process at the heart of 
the continual reproduction of the capitalist mode of production, Marx does not 
limit his exposition of primitive accumulation to a historical depiction of the enclo- 
sure movement in England. Whereas Part VIII of Capital, titled "The So-Called 
Primitive Accumulation," begins with the enclosure movement, it ends with the 
chapter titled "The Modern Theory of Colonization." The historical relationship 
between primitive accumulation and colonialism has been most clearly expressed, 
however, by Rosa Luxemburg in The Accumulation of Capital. Luxemburg stresses 
that primitive accumulation is continued in "modern colonial policy," where "each 
new colonial expansion is accompanied, as a matter of course, by a relentless bat- 
tle of capital against the social and economic ties of the natives, who are also forc- 
ibly robbed of their means of production and labor power." 23 Colonialism is linked 
to enclosure, therefore, as part of a continuous material-historical process endemic 
to capitalist development. From the perspective of political economy, colonialism 



334 ATTEBERRY 



is the primitive accumulation of enclosure operating on a globalized scale. 

Colonialism is, in fact, doubly articulated with enclosure, for they are related 
on the ideological level, as well. 24 It is important to remark equally here the his- 
tory of the ideological role played by the figure of "the commons" in the colonialist 
form of primitive accumulation. The figure of the commons appeared as early as 
John Locke's Second Treatise of Government, where the "commons" functions as an 
ideological object of knowledge, rather than as the real object of history analyzed 
by Marx. For Locke, the commons is a necessary figure for his famous labor theory 
of value, which posits that a man has property in anything that is "by him removed 
from the common state Nature placed it in, it hath by this labour something 
annexed to it, that excludes the common right of other men." 25 Moreover, Locke 
posits that God "hath given the World to Men in common" and confines property- 
entitling labor to labor that assumes the form of Western agricultural practice. 26 
In this way, the ideological and legal apparatus is established for disappropriat- 
ing land from colonized peoples who were previously at home on it. In short, the 
native peoples encountered by colonial expansion were denied any property inter- 
est in their own lands on the basis of the idea that the Earth was given to human- 
ity in common to be appropriated in the form of private property by those whose 
social modes of production resembled those of the colonizing Europeans. 

With Locke then, the idea of the "commons" provided an ideological basis and 
justification for colonialist appropriation and enclosure of non-European territory. 
To this extent, Locke's theory provides the ideological groundwork for the first 
stage of capitalist imperialism. 27 Once this difference between Marx's material his- 
tory of the commons and Locke's ideological conception of the commons comes 
into focus, the A2K movement's invocation of the commons opens two possible 
paths of theoretical development. On the one hand, A2K theory may be rigorously 
informed by Marx's material history of the commons and articulate the critical 
resources necessary to forestall the reproduction of old colonial relations within 
the new informationalism. Or, on the other hand, A2K may become theoretically 
beholden to a political economy grounded in Locke's ideological conception of 
the commons. To the extent that it hews to the former path, the A2K movement 
promises to be a powerful force in the decolonization of the current imperialism of 
informational capitalism. To the extent that it falls into the latter rut, however, the 
A2K movement risks disappointing that promise. 

THE (POST)COLONIAL COMMONS 

Thus far, A2K theory has primarily found its conceptual resources in the foun- 
dational figures of liberal capitalism. When Boyle's essay "The Second Enclosure 



A2K THEORY AND THE POSTCOLONIAL COMMONS 335 



Movement," for example, turns from "criticisms of the logic of enclosure," which 
he says are not enough, to developing "the vocabulary and the analytic tools nec- 
essary to turn the tide of enclosure," the conceptual resources are found in the 
writings of Thomas Babington Macaulay and Adam Smith. 28 That is, the resources 
that are held out as offering a way toward turning the tide of enclosure are pre- 
cisely the conceptual resources that are at the very heart of the political economy 
of capitalist imperialism, which was nothing other than a global regime of disci- 
plinary enclosure. It is unclear how conscious this theoretical choice has been. In 
any case, whether it is symptomatic or strategic, this theoretical reliance on clas- 
sical liberalism reflects the fact that A2K theory is materially and historically situ- 
ated within liberal capitalism. Nevertheless, lest A2K's own development be swept 
away by that material history, a theoretically critical relationship to A2K's posi- 
tionality needs to be undertaken. 

Thomas Babington Macaulay has a certain fame among intellectual property 
scholars for pithy comments concerning copyright that he made as a member of 
Parliament. 29 Macaulay's more enduring historical legacy, however, is as one of 
the chief architects of the British imperial project in India. 30 From 1834 to 1838, 
he served in India on the Supreme Council. During this time, he wrote his "Min- 
ute on Indian Education," which set the educational policy objective of the British 
Empire: "We must at present do our best to form a class who may be interpreters 
between us and the millions whom we govern; a class of persons, Indian in blood 
and colour, but English in taste, in opinions, in morals, and in intellect." 31 During 
the same period, he also drafted the Indian Penal Code, which would be adopted 
and put into force only in 1861, when the British Crown took control of India away 
from the East India Company after the Sepoy Mutiny. 

Given his central role in the formation of the British Raj, therefore, it should 
come as no surprise that Macaulay's discourse, quoted at length by Boyle, is punc- 
tuated with references to the East India Company. In arguing against expanding 
the term of copyright protection, Macaulay asks his opponents for "any reason 
why a monopoly of books should produce an effect directly the reverse of that 
which was produced by the East India Company's monopoly of tea." 32 This rhe- 
torical gesture is posed against the backdrop of a century-long struggle between 
Whigs and Tories, both within the Parliament and in the East India Company itself, 
over the role of the company within the political economy of the empire. 33 Con- 
sequently, Boyle is right to observe that Macaulay's "free-trade skepticism about 
intellectual property" was essentially a concern with monopolies in general. 34 Nev- 
ertheless, this concern with monopoly was historically rooted in the politics sur- 
rounding the East India Company and therefore was ultimately a concern with the 
political economy of empire. 



336 ATTEBERRY 



The terms of this historical debate were largely shaped by the publication of 
Adam Smith's The Wealth of Nations in 1776. As is commonly recognized, one of 
the central arguments of this historically influential text is that free markets are 
naturally the most efficient way to structure a market economy and that monop- 
olies, insofar as they are state-enforced limits on free trade, should be viewed 
with great skepticism. What is less commonly recognized, however, is the extent 
to which Smith formulates this argument with the policy objective of finding the 
most efficient way to administer the colonial project politically. Thus, for example, 
Smith repeatedly makes such statements as "If the colony trade, however, even as 
it is carried on at present, is advantageous to Great Britain, it is not by means of 
the monopoly, but in spite of the monopoly" 35 This policy objective is written all 
over Smith's text, so it is not surprising that it, rather than a concern with intel- 
lectual property, should form the heart of the lengthy passage from Smith quoted 
by Boyle in "The Second Enclosure Movement." The long passage quoted by Boyle 
comes from an extended meditation upon the limited utility of monopolies in the 
early stages of a colonizing effort. Smith writes, and Boyle quotes: 

A temporary monopoly of this kind may be vindicated upon the same principles 
upon which a like monopoly of a new machine is granted to its inventor, and that of 
a new book to its author. But upon the expiration of the term, the monopoly ought 
certainly to determine; the forts and garrisons, if it was found necessary to establish 
any, to be taken into the hands of the government, their value to be paid to the 
company, and the trade to be laid open to all the subjects of the state. 36 

The reference to what we now call intellectual property rights is ancillary to 
the thrust of Smith's argument, whose objective is to explain the limited utility of 
monopolies in the initial stages of colonization. After the monopoly's initial pur- 
pose has been served — that is, after the colony has been firmly established — the 
trade should be "laid open to all the subjects of the state." If one is to take the A2K 
discourse seriously, then, one must ask to what extent arguments in favor of an 
unfettered information commons, in opposition to stronger intellectual property 
rights, reflect the fact that global informationalist capital may be beginning to con- 
ceive of itself as exiting the initial mercantile stage of its neocolonial enterprise. 
In the current transitional moment, intellectual property rights may have already 
secured informational capital an international foothold in the form of the TRIPS 
Agreement. Now that "the forts and garrisons" are in place, it may be time to enter 
into a neoliberal phase of free trade. Of course, it may be objected that the differ- 
ence between Smith's argument in 1776 and the A2K argument in 2009 is that the 
public domain is and should be open to exploitation by all, not just "the subjects 
of the state." Research suggests, however, that this is simply not the case — that 



A2K THEORY AND THE POSTCOLONIAL COMMONS 337 



the public domain is and will be "exploited asymmetrically" by Western corporate 
interests. 37 The concern is that A2K's informational commons, in the absence of 
additional changes in the international intellectual property regime that are yet to 
be theoretically elaborated, will work to effectuate this transition. 

The shift from the mercantilist phase to a free-trade phase is, as Smith and 
the A2K movement both argue, necessitated by reasons of efficiency. The ques- 
tion remains: "Efficient" at what, exactly? In keeping with the classical liberalism 
inherited from Smith, the current neoliberal school of thought would answer the 
question with the reply "efficient at allocating resources between market actors by 
making them internalize their externalities." Such an answer merely begs the ques- 
tion insofar as participatory membership within the market is precisely what is at 
issue in the globalized struggle. The classic economic response takes the market 
and membership in it for granted. It does not reach the real issue in at least two 
structurally related ways. First, global capital has never seriously contemplated 
internalizing the externalities of colonialism, which is to say the tremendous bur- 
dens that the history of colonialism has imposed on the "developing world." Sec- 
ond, it fails to contend with the extent to which the market comes into being at 
all through the creation of a more radical externality — call it "subalternity" — that 
cannot be represented within the market at all. 38 The logic of the market, like all 
logical systems, is founded upon a constitutive exclusion that cannot be repre- 
sented within the system, but the exclusion does, nevertheless, manifest effects 
within the system in the form of a trace that marks the system's own internal limit. 
The subaltern, as "the absolute limit of the place where history is narrativized into 
logic," traces the limit where capitalist economic logic fails to grasp the necessary 
historical condition of its own development and continued survival. 39 In the con- 
text of today's informational capitalism, TRIPS, for example, purports to integrate 
the developing world into the system of global capital, yet it is able to do so only 
to the extent that the intellectual property regime imagines the developing world 
as a subject of property rights. Similarly, A2K theory aims to address this particu- 
lar problem by proposing an economic model of the commons in which the devel- 
oping world would have greater access to informational goods. However, such an 
integration takes place again only to the extent that the developing world is imag- 
ined as having access to the finance capital, social capital, and human capital that 
is required to make such access economically productive. In both instances, both 
economic theory and the legal regime necessarily fail to account for the founda- 
tional act of expropriation that is required for the capitalist production of surplus 
value. This process of constructing the capitalist free market through the produc- 
tion of subalternity is, once again, what Marx calls primitive accumulation. 

Smith's antimonopolistic argument is aimed, therefore, not only at achieving 



338 ATTEBERRY 



efficiency in wealth distribution within the functioning of the capitalist market, 
but at achieving efficiency in the production of those markets through primitive 
accumulation. This objective is starkly manifest, for example, when Smith writes: 

In Africa and the East Indies, therefore, it was more difficult to displace the natives, 
and to extend the European plantations over the greater part of the lands of the 
original inhabitants. The genius of exclusive companies, besides, is unfavourable, it 
has already been observed, to the growth of new colonies, and has probably been 
the principal cause of the little progress which they have made in the East Indies. 40 

Progress here is plainly defined as clearing "the natives" from their land. 
Where these "natives" are well entrenched, however, monopolies do not do the 
best job of it. As those who have lived through colonialism know, being denied 
monopoly privileges is not the only way of being excluded from the market. There 
are, indeed, more efficient means of exclusion, more thorough forms of material 
alienation. Even within the developed world, monopolies are not necessary to 
keep the bulk of the working class alienated from the prevailing means of produc- 
tion. Economic barriers to market entry do just fine. This has been all the more 
true for those on the periphery of the world system, where the regime of liberal 
free trade ephemerally appeared in the global transition to state monopoly capital- 
ism. 41 The arguments for a global commons, therefore, may in effect clear the way 
for a more efficient capitalist territorialization of the informational terrain. 

CONTROL IN THE INFORMATION SOCIETY 

In response to this historicized argument, a rigorous line of reasoning in A2K the- 
ory would likely insist that important differences between informational goods and 
more traditional industrial goods are being overlooked. There are two major differ- 
ences. First, informational goods are "nonrival," which means that their consump- 
tion by one user does not preclude their use by another. As a result, the marginal 
cost of producing informational goods approaches zero. 42 Second, informational 
goods are both inputs and outputs of their own production. Since innovation is 
cumulative, the reduction in the productive consumption of informational goods as 
a consequence of intellectual property protection results in externalized social costs 
in the form of reduced innovation. 43 Ignoring these differences conflates intangible 
and tangible goods, the argument would claim, and results in conflating the different 
historical moments of enclosure. Informational resources are different from more 
tangible resources, so a global information commons would operate differently than 
classic free-market liberalism under colonial rule because the market of informa- 
tional capitalism differs so fundamentally from the market of industrial capitalism. 



A2K THEORY AND THE POSTCOLONIAL COMMONS 339 



By focusing in this way on the microeconomics of informational goods, A2K 
theory has shown that the current distribution of both information and the ben- 
efits it brings cannot be rectified until the iron grip of maximalist intellectual prop- 
erty protection is broken. The formation of an information commons may prove to 
be a necessary condition for unleashing the productive potential of informational 
capitalism. Current A2K theories demonstrate not only why this is so, but why 
this is an economic imperative that may well be irresistible as the social conditions 
of production become increasingly networked. "Information wants to be free," as 
the slogan goes. 44 To the extent, however, that A2K discourse has tended to adopt 
an uncritical discourse of freedom, its theoretical project risks replacing a material 
conception of the commons with an ideological one. It must not be forgotten that 
capitalist liberal ideology has always advanced under the sign of "freedom." The 
process of primitive accumulation, for example, frees the peasant from the land, 
transforming him into "a free worker . . . free in the double sense that as a free indi- 
vidual he can dispose of his labor-power as his own commodity, and that on the 
other hand, he has no other commodity for sale." 45 Similarly, British imperialism — 
like all the others, past and present— ideologically justified itself by asserting that 
"under the charm of this beneficent spirit the chi